The Equality and Human Rights Commission has recently published guidance encouraging employers to understand their responsibilities in terms of supporting menopause in the workplace. While we have made great progress in this area, there is still some way to go.
Currently, one in four employers have a policy in place and nearly half of employers are taking action on menopause. But Unite’s statistic that 83% of menopausal women say they have zero support in the workplace is telling. It could be the support is there and they are unaware of it, which is an issue in itself. But half of employers still haven’t started to consider this support in their workplaces.
For these employers, it’s worth understanding that lack of awareness could pose significant risks.
CIPD research tells us that 67% of working women between the ages of 40 and 60 with experience of menopause symptoms said they have had a mostly negative impact on them at work. And The Fawcett Society research says that one in 10 women surveyed who were employed during their menopause left work due to menopause symptoms.
This can have a significant impact on workforces and costs to a business. It’s also important to note than menopause can happen to people much earlier, so we are looking at a wide demographic.
Employment law and menopause
There are currently no menopause-specific employment laws. However, the Manifesto for Menopause from the All-Party Parliamentary Group has called for seven key reforms, which include employment aspects.
The Labour Party have committed to adopting two of these proposals if they are voted into power:
- Requiring employers with over 250 employees to introduce menopause action plans to support those going through menopause
- Providing specific guidance to SMEs to support employees going through menopause
Employer’s legal responsibilities
An employer’s legal responsibilities fall within three remits. These are under the Equality Act 2010, unfair dismissal protection under the Employment Rights Act 1996 and the Health and Safety at Work etc Act 1974. We are seeing a rapid rise in the number of tribunal claims being brought with menopause at their heart.
Under the Equality Act 2010, menopause discrimination could fall into the protected characteristics of sex, age, disability and gender reassignment, or a combination of these.
Discrimination cases don’t have any cap on compensation and may include loss of earnings and pension, which can be significant. Disability cases have always attracted the largest compensation awards, especially if the disability impacts on the person’s ability to secure an equivalent role.
For employers, tribunals mean dealing with legal costs and reputational damage, plus there is often a huge impact on recruitment and retention. There can be huge costs when things go wrong if employers aren’t offering appropriate menopause supports for employees in their workplaces.
Discrimination falls into various categories:
- direct discrimination – treating someone with a protected characteristic less favourably than others.
- indirect discrimination – putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at an unfair disadvantage.
- harassment – unwanted behaviour linked to a protected characteristic that violates someone’s dignity or creates an offensive environment for them.
- victimisation – treating someone unfairly because they’ve complained about discrimination or harassment.
The legal definition of disability is:
- A person has a physical or mental impairment; and
- The impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.
Some menopausal symptoms may meet this definition.
Case law
We are seeing an increasing number of tribunals being brought on the basis of discrimination relating to menopause. These include:
This claimant successfully won her case for age discrimination against her employer. She had been viewed as ‘a menopausal woman – that is, an older woman’ and was told by her CEO to ‘Calm down… don’t let the hormones get out of control.’ The CEO also considered older people not to be familiar with IT processes and had asked a recruiter to find a younger replacement – evidence of direct discrimination on the basis of age.
Compensation of £20,000 was awarded.
In this case, the female employee had worked in retail for 37 years. When she was going through menopause her manager began to humiliate and demean her, calling her a ‘dinosaur’ in front of customers. He made comments about her being menopausal and criticised her performance.
After suffering ill health and taking sickness absence, she was due to come back on a phased return, but her manager scheduled her on a full-time basis. She had to go back on sick leave and had a breakdown. She made a successful claim for sex and age harassment and was awarded £18,000 in compensation.
Rooney vs Leicester City Council (2021)
The claimant here satisfied the disability definition, which was determined at appeal. The claimant suffered from significant menopausal symptoms which led to, amongst other things, her forgetting to attend events, meetings and appointments, forgetting to put the handbrake on or lock her car and spending prolonged periods in bed with fatigue. This case has proceeded to a full hearing to establish whether the claimant has been the subject of discrimination.
An outcome is awaited.
McMahon vs Rothwell and Evans LLP (2019)
The claimant had been dismissed for timekeeping reasons, extended breaks and continued absences. These were due to her menopause symptoms, which amounted to a disability. But her employer had not known about them and she had downplayed her symptoms.
It was therefore found that the dismissal was proportionate and the claim failed.
This makes it clear that employers need to be made aware of issues for an employee to establish that the employer had knowledge.
The claimant had received good appraisal ratings but had been impacted by menopause symptoms. Her employer was on notice of these but instead of seeing it as mitigation her manager gave her a written warning, a low appraisal rating and removed sick pay provision, thinking the latter would encourage her to return to work.
The claimant won the case and was awarded almost £65,000 in compensation.
Lessons for employers
- All of the cases highlighted have pointed to the need to educate managers and provide them with the necessary skills and the toolkit. Very often managers are making these errors because they haven’t been properly trained.
- The key is to not make any assumptions. Disability may not be obvious, so look out for warning signs such as regular patterns of absence.
- Always encourage positive discussions and conversations at work about menopause.
- Employers are under an obligation to take reasonable steps to find out the facts being mindful of dignity, privacy, and confidentiality. In some cases, it may be prudent to obtain a medical report to explain a drop in performance or increased absence.
- There is also a legal obligation for employers to conduct, document and revisit health and safety assessments and involve the employee in these (this includes those working from home too). They must also take action and remove or control any identified risks.
- If an employer breaches their duty to provide a safe working environment this can lead to a claim of constructive dismissal – where an employee resigns but says this is as a result of their employer’s actions.
Recent developments
The Women and Equalities Committee has presented a number of recommendations.
Thanks to these, as of 6 April 2024 all employees will have a day one right to request flexible working, and no longer have to wait six months as previously. There is also a commitment to make improvements to health and safety guidance to help employers support menopausal employees – this is not yet published but the commitment has been made.
The Equality and Human Rights Commission has published new guidance which features lots of good advice and tips for employers, as well as some useful videos with best practice examples.
Action points for employers
There are lots of things employers can do and this will differ between organisations. Some general recommendations include:
- Take menopause and menstruation symptoms seriously
- Have open conversations with employees
- Review support in place for women experiencing menopause
- Take health issues fully into account before any formal process. Seek medical advice if any issues arise, before taking action
- Educate all key parties in the workplace
- Consider creating a menopause policy or guidelines. These could include:
- What menopause is and common symptoms
- How to facilitate open conversations
- Details of support available
- Adjustments which could be considered
- Remember that performance, attendance or sickness absence issues may be related to the menopause.
Consider reasonable adjustments
Again, these will differ for each person and each organisation. Talk to your colleague about what they would find helpful and make sure you review adjustments regularly. If you’re setting timescales for improvements in performance, attendance or reduction in sickness, these must be reasonable. Tribunals look at reasonable treatment as the basis of their considerations.
While many employers are realising the importance and value of supporting menopause at work, there are still some who are yet to address the issue. This could leave these organisations vulnerable to being taken to tribunal, risking huge costs both financially and reputationally.
Introducing menopause support can help to protect you from a legal standpoint, as well as emphasise your focus on your colleagues’ wellbeing – great for your recruitment and retention, too.
