Did you know that menopause is covered by employment law?
It’s actually covered under the Equality Act 2010 under three protected characteristics: age, sex and disability discrimination. Discrimination can be either direct or indirect.
Direct discrimination is where an employee is treated less favourably because of a protected characteristic, so in the case of menopause, it is likely to be disability sex or age.
Indirect discrimination is where a provision, practice or criteria is discriminatory in relation to a protected characteristic. For example, a policy applied to all, such as fixed start and finish times, may put a worker at a disadvantage.
Menopause and the Equality Act
“Many workers who are considering a claim under the Equality Act will consider whether or not one of the three protected areas apply to them. Many cases are brought under the disability limb,” says Jog Hundle, a partner at Mills & Reeve. Jog heads the health and care employment team and has specialised in the sector for over 25 years.
She continues: “Employers may not recognise that they are dealing with an issue relating to menopause. So they do need the training and the resources to have an open discussion with a worker who is faced with perhaps sickness absence or capability issues with regard to delivering their role. Because menopause could be the issue that is behind a change in their ability to carry out their role.”
Some organisations are surprised to find that menopause is protected under the disability strand of the Equality Act. But the definition here is a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Which, for some women experiencing menopause symptoms, is exactly the case.
The health and safety aspect
Menopause is also covered by the Health and Safety at Work Act 1974, which provides for safe working.
Jog says: “Every employer has a duty to provide a safe system of working, and that extends to the working environment. In addition to the Equality Act, we do have our obligations under health and safety legislation, too.
“Clearly, we have a large number of women now in the workforce, often holding senior positions. Any business will make sure it supports its workforce and minimises any absence on grounds of menopause but also retains its most important staff in terms of experience. This business case is very compelling.”
According to Jog, it’s also important for employers to consider menopause as part of their resolution of disputes procedures.
“Many workplaces have grievance procedures, disciplinaries and sickness performance management systems,” she says. “Very often, there can be other issues that employers need to get to grips with. One of these could be the impact of the menopause on a female’s ability to carry out her duties. To minimise disputes and promote retention of key skills within the workforce, menopause support must be considered.”
Awareness and inclusivity
In terms of starting a menopause campaign, Jog’s advice is for employers to include absolutely everyone.
“Managers need to understand their obligations in terms of managing and supporting employees through sickness and through poor performance, which may only be transient. But we can’t ignore the rest of the workforce. It’s important to really raise awareness of menopause within the whole organisation.”
The legal consequences of not complying with employment law can be far reaching. Under the Employment Rights Act 1996, an employee with two years’ service can claim unfair dismissal. This imposes a duty on employers to act fairly when dismissing employees.
There is also ‘constructive dismissal’ to consider – which is where an employee is at end of their tether, so they resign, claiming their employer’s behaviour and conduct has caused this.
Employees can claim for loss of earnings and pension, and compensation is uncapped under the Equality Act. There have also been a number of successful employment tribunals brought about through menopause-related discrimination. These are not only costly to employers, they can also risk permanent damage to their reputation.
Jog offers five practical tips to overcome employment law risks:
- Provide an accessible and well-publicised policy
- Don’t ignore the importance of Occupational Health Access
- Be mindful of the working environment/access to facilities
- Remember to educate all key parties in the workplace
- Implement reasonable adjustments
“In the past, women have been loath to refer to menopause as part of their grievances or claim,” says Jog. “But as we can see, these attitudes are changing.
It’s time all employers started providing menopause awareness, education and support for their workers.”