The menopause and legal issues in the workplace
By Homa Wilson on 17 October 2023
Women over the age of 50 are the fastest growing sector of the workforce. An increasing number will experience symptoms of the menopause in the course of their working lives. It is therefore important that employers understand the challenges they face, and consider what practical steps can be taken to help and support them.
What is menopause?
The menopause occurs when the menstrual cycle comes to an end. For most women, this occurs between the ages of 45 – 55. The menopause can have a significant impact on individuals; it can affect relationships, family life as well as work. For some, the symptoms can be debilitating and result in them leaving their jobs.
It can take anything between 7 -14 years to go through the various stages of the menopause.
It is important to note that transgender men and people who are intersex or identify as non-binary may also experience menopause. As such, they will also have legal protection and require support and assistance.
Going through menopause can significantly affect an individual’s health and wellbeing. Common symptoms include, anxiety, irritability, difficulty concentrating, fatigue, headaches, hot flushes and disruptive sleep – all of which can negatively impact on work, relationships with colleagues as well as clients and result in sickness absence.
Research has shown that many women still feel unable to discuss the difficulties they experience or to disclose to their employer that their sickness or absence is related to menopause. This may be due to a culture where getting older is viewed with fear. Another barrier to openly discussing such issues is the societal taboo where conversations about ‘women’s issues’ are met with discomfort. The result is that many women are left struggling and feeling unsupported.
The legal position
Although the menopause is not a protected characteristic under the UK Equality Act 2010, it is clear from case law that where an employee is treated unfairly, because of menopause, they may be able to bring a discrimination claim by relying on existing protected characteristics, such as sex, age and/or disability discrimination.
Pitfalls employers should avoid
- Any “banter” or jokes regarding the menopause or symptoms arising from the menopause could give rise to a sex discrimination claim.
- Comments about hot flushes or someone being “in a menopausal state” can amount to unlawful harassment as well as direct discrimination on grounds of sex.
- If menopause symptoms are treated differently from other medical conditions, this can also leave the employer vulnerable to a claim for sex discrimination.
- If a menopausal employees performance suffers because, for example, they are less able to concentrate, subjecting them to a performance management process or disciplining them could also give rise to claims for sex discrimination.
- Given that the menopause is generally age-related, where someone is treated unfairly because of the symptoms they experience, they may also have an age discrimination claim. Similarly, making offensive remarks, for example calling someone a dinosaur, can also amount to age based harassment and give rise to a legal claim.
Employment tribunals have also accepted that the menopause can amount to a disability. However, this will always depend upon the individual’s particular circumstances.
Whether or not an individual will be able to avail themself of protection, as a “disabled” person, under the Equality Act will depend on how the menopause affects them. The question for the employer will be: are they experiencing symptoms which cause a substantial and long-term (at least 12 months) adverse effect on their ability to carry out normal day to day activities?
Not all women going through the menopause will be severely affected – this is why it is important for employers to understand what the individual is experiencing and have a open and frank discussion about how to support them.
In cases where the employee’s symptoms are having a substantial, adverse affect on them, the employer should arrange an assessment and obtain a medical opinion to determine whether they might be considered “disabled” under the Equality Act. If so, the employer’s duty to make reasonable adjustments will be triggered. This is someone the employer has to be mindful off and navigate very carefully.
The duty to make reasonable adjustments arises where an employer is aware (or should reasonably be aware) that an employee has a disability and is placed at a substantial disadvantage as a result of an employer’s policies, practices or a physical feature of the workplace.
This places the employer under a legal duty to make reasonable adjustments to reduce or remove the disadvantage. Reasonable adjustments can include: providing a fan or alternative uniform – to deal with hot flushes, allowing more time to complete tasks – to help where concentration or memory is impaired.
The menopause can also cause various symptoms that can affect performance or conduct at work. An employer could be vulnerable to discrimination claims if it dismisses or disciplines an employee for poor performance or misconduct without first exploring whether the issues may have arisen due to menopause.
How to support employees?
1. Menopause policy
Have a standalone menopause policy. This should cover: awareness of what someone is going through the menopause is likely to experience, how it might affect their wellbeing and work, guidance to managers on how to deal with issues sensitively, clear advice on what steps to take to support an affected employee, direct employees to support channels – stating who they can talk to and identify the kinds of requests they can make, notify them of designated individuals who can provide support if they require adjustments.
The aim should be to normalise the discussion around menopause so that staff feel comfortable and confident discussing the difficulties they face and exploring how their employer can help them overcome the challenges.
2. Appoint menopause champions
It can be difficult for women to speak about the difficulties they are experiencing, particularly if their manager is a man or younger than them.
A menopause champion can act as a point of contact for both employees and their line manager. Ideally, a champion should be someone who is trained to listen and respond in a sensitive manner. It is important that the menopause champion is also well versed on the company’s menopause policy and able to direct the employee to any support and assistance available.
3. Update policies and procedures
Sickness absence procedures should be updated to ensure they take into account the effects of the menopause. The employer’s usual policies on sickness absence and performance should be adjusted to cater for staff where absences are related to the menopause, as well as where someone’s performance is impaired due to menopause.
4. Flexible working
Menopausal employees may require more flexibility around their working arrangements. Employers need to be able to respond to this and should proactively set out the flexible working arrangements available as well be prepared to explore alternative suggestions made by the employee.
This could include a job share, compressed hours, remote/hybrid working or authorising leave at short notice.
5. Health and safety
Under UK The Health and Safety at Work Act 1974 employers are obliged to ensure “the health, safety and welfare at work” of all employees.
It is important that employers carry out risk assessments specifically aimed at understanding the needs of menopausal staff.
Looking after the health, safety and welfare of menopausal workers could include taking simple steps such as: providing electric fans, cold drinking water, allowing time off for medical appointments, providing alternative uniforms and allowing staff to work flexibly.
As a society, we have only just begun talking about the menopause openly. Given that this is an issue that will affect an increasing number of the workforce, it is crucial that employers proactively support staff as well as raise awareness of the symptoms of menopause and its impact in the workplace. Failure to do so will leave them open to legal claims as well as result in the loss of a valuable sector of the workforce.
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