Changing Times – Managing Menopause in the Workplace

Menopause in the workplace is a subject matter which is rightfully gaining traction – but this is not a new phenomenon, so what has changed?

The short answer is that as well as awareness generally, the demographic of the workplace has changed. With far more women returning to the workplace after having children, and working up to retirement age, it is estimated that nearly 8 out 10 women who are experiencing the menopause are in work. On 23rd February 2022 the Women and Equalities Committee in the House of Commons published the ‘Menopause and the workplace survey results.’ The findings of this report showed that 99% of the respondents experienced at least some symptoms related to menopause, with a large proportion stating that these symptoms influenced them in the workplace

Many of these women will be incredibly valuable employees and will have experience, knowledge and insight into the business that cannot easily be replaced, therefore supporting and understanding may help to retain key personnel who may otherwise feel that they cannot remain employed.

Before looking at what an Employer can do to support women who are going through the menopause, it is first worth looking at the legal implications, and what claims could be brought.

Discrimination

The menopause is not in itself a protected characteristic. However, if an employee or worker, because of the menopausal symptoms, is put at a disadvantage or treated less favourably than other employees or workers, this could be discrimination if related to a protected characteristic, for example:

• age
• disability
• sex

Discrimination on the basis of Age

As menopause and perimenopause generally affect women who are either in their 40s or over, any less favourable treatment or disadvantage could be discrimination based on the protected characteristic of age:

In the case of A v Bonmarche Ltd (In administration) Ms A had worked in retail for 37 years. Her situation at work changed around May 2017 when she began to go through the menopause. Ms A’s male manager would demean her and humiliate her in front of other staff who were younger than Ms A and would laugh at the manager’s remarks. The manager also referred to Ms A “a dinosaur” in front of customers and continually criticised her unreasonably.

Ms A contacted senior management complaining of her manager’s treatment, however, these complaints fell on deaf ears and no action was taken. Ms A suffered a breakdown in November 2018 resulting in being signed off sick. Ms A’s manager behaved in a threatening manner towards her upon her return to work, which subsequently led to her resignation. Ms A made a claim to the employment tribunal on the basis that she had suffered harassment and bullying in relation to both age and sex discrimination. She was successful in her claim and awarded £28,000.

Discrimination on the basis of Sex

Sex discrimination may occur, in the context of the menopause, where an employer treats a woman’s menopausal symptoms less seriously than it would a male employee’s health condition when considering performance in a performance management process.

In Merchant v BT Plc, Ms Merchant was dismissed following a final warning for poor performance. Ms Merchant had previously given her manager a letter from her doctor explaining that she was “going through the menopause which can affect her level of concentration at times”. In dismissing her, the manager chose not to carry out any further medical investigations of her symptoms and in particular he relied upon his knowledge of the menopause from the symptoms his wife and a colleague had experienced. This approach was in breach of BT’s performance management policy. The tribunal upheld Ms Merchant’s claims of direct sex discrimination and unfair dismissal.

Discrimination on the basis of Disability

In order to establish a claim for disability discrimination an individual must firstly satisfy the legal test for the purposes of the Equality Act 2010. A person is disabled for the purposes of the Equality Act 2010 if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on the ability to do normal daily activities.

It is well documented that the symptoms of menopause can be physical, psychological and/or cognitive. Symptoms can vary in severity and can have a significant impact on a person’s day-to-day activities and ability to perform as usual in the workplace to the extent that it can amount to a disability in some cases.

Two recent cases have considered whether the menopause, or rather the symptoms of menopause could constitute a disability within the meaning of the Equality Act.

In the case of Donnachie v Telent Technology Services Ltd 2020, Ms Donnachie experienced severe hot flushes seven or eight times a day which were regularly accompanied by palpitations and feelings of anxiety, the frequency of which would increase when Ms Donnachie was under stress or pressure. She also began to experience night sweats causing her to wake six to eight times a night; she began to experience fatigue, anxiety and memory and concentration difficulties. Ms Donnachie was prescribed HRT patches by her GP which improved her symptoms, but they persisted, particularly when she was under pressure. Ms Donnachie’s symptoms impacted day-to-day activities including carrying out household chores, walking, reading, writing, using a computer, and sleeping.

Ms Donnachie’s employer argued that she merely suffered from ‘typical’ menopausal symptoms and therefore the impact on her was not substantial. However, the tribunal held that the impact of Ms Donnachie’s symptoms on her day-to-day activities was more than minor or trivial and her menopause symptoms did amount to a disability. It could not see any reason in principle why “typical” menopause symptoms could not amount to a disability.

In the more recent case of Daley v Optiva 2021, Ms Daley who was 51 years old, and who had experienced various symptoms attributable to the menopause brought claims at the tribunal including a claim for disability discrimination. A preliminary hearing was held to consider the question of disability which is a legal test within an employment law context. The tribunal concluded that Ms Daley did satisfy the definition and her claim for disability discrimination was allowed to proceed.

What can employers do?

Ensure there is an informed and robust menopause policy in place which can foster a culture of support and openness around the topic and breakdown the barriers of what has up until recently been a taboo topic.

Educate staff about the menopause and train managers so they are comfortable with discussing the effects that menopause can have on an individual.

Manage sickness absence carefully – if absence is due to menopause symptoms consider making reasonable adjustments such as disregarding such sick days for the purposes of an ill health capability process.

Employ relevant reasonable adjustments that can support women experiencing the menopause to carry on working in the roles that they know and understand and avoid potential discrimination claims.