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          Menopause in the workplace: What is the legal impact?

          Statistics show that seven out of 10 women of menopausal age are in the workplace in the UK.  Health & Her and the Office for National Statistics revealed a loss of productivity of 14 million working days annually due to menopausal symptoms.  

          Date: 15/10/2019

          The report also revealed over 370,000 working women aged between 50 and 64 had either left or considered leaving their career due to the symptoms of the menopause in the workplace being too difficult.  At a time when employers are focussing on how to conquer the gender pay gap, tackling menopause in the workplace has to be high up the agenda.  Many businesses struggle with their gender pay gap due to a lack of women in senior roles and it follows that supporting and accommodating female employees during this period of their life is a clear step in the right direction.  

           

          What is the menopause?

          According to the NHS the menopause is "when a woman stops having periods and is no longer able to get pregnant naturally".  This sounds very simple and unproblematic.  Unfortunately there a number of side effects which can accompany the menopause, and indeed the period immediately prior to menopause, peri-menopause, including; hot flushes, night sweats, low mood, anxiety, difficulty concentrating and sleep deprivation.

           

          The legal impact of the menopause

          Although the Equality Act 2010 does not specifically identify the menopause, it is capable, in some instances, of being a disability and as it only affects older women there are potential issues of sex and age discrimination where there is detrimental treatment due to the menopause. 

           

          Disability discrimination 

          the menopause is not per se disability discrimination, however an employee suffering severe symptoms of the menopause may be classed as disabled (consideration will be given to whether the condition is substantial and long term and has an adverse effect on the ability to carry out day-to-day activities).  Where the test of disability is satisfied, employers would be under a duty to make reasonable adjustments.  Even if an employee does not come within the strict definition of disability, it is fair practice and advisable for employers to consider what adjustments could be made.  Employees who are disabled are also protected against direct and indirect disability discrimination and discrimination arising from the disability.  

           

          Sex discrimination

          an employee who suffers any form of discrimination in relation to the menopause may have a direct or indirect sex discrimination claim. 

           

          Age discrimination

          the menopause is a natural part of ageing and usually occurs between the age of 45 and 55.  The average age of the menopause in the UK is 51.  Due to the direct correlation of the menopause with age, any less favourable treatment could amount to a direct or indirect age discrimination claim.  

          As well as the above, an employee may also have claims for victimisation or harassment.  

          Although we have not seen many Employment Tribunal claims, some first instance decisions have been reported. 

          In the case of Davies v Scottish Courts and Tribunal Service an Employment Tribunal found that Mandy Davies had been unfairly dismissed and that the dismissal was due to conduct arising from her disability.  In this case Ms Davies suffered from menopausal symptoms of heavy bleeding, stress, anaemia, memory loss and at times felt "fuzzy".  The conduct related to an incident where there was some confusion over whether two colleagues had drunk Ms Davies' medicated water.  Ms Davies was accused of lying over the incident by deliberately misleading the two colleagues that they may have drunk the medicated water.  Ms Davies was  subsequently dismissed for gross misconduct.  The Tribunal found that the dismissal was due to discrimination arising from her disability.  Ms Davies' symptoms caused her to be forgetful and confused and so it was perfectly plausible that she could not remember whether she had put her medication in the water. 

           

          Action

          With the potential impact on the workforce and the possible legal ramifications, it is important for employers to take action.  Possible steps to consider include: 

          • A menopause policy – many employers are now implementing a menopause policy to help raise awareness of the issue.  From identifying the possible adjustments to make to guidance on what symptoms might be, the policy can provide a step by step guide for menopause in your workplace. 
          • Training – any policy is undoubtedly more effective when staff are properly trained and informed on its use.  The menopause has historically been (and arguably, is presently) seen as a taboo subject.  By discussing it openly and transparently in training sessions with the workforce, employers can help challenge misunderstandings and facilitate adjustments. 
          • Occupational health support – employers should consider offering occupational health support for employees going through the menopause.  
          • Reasonable adjustments – from temperature control in the office to flexible working times, employers should consider what they can do to help an employee suffering from menopausal symptoms.  The Equality and Human Rights Commission Statutory Code of Practice provides a non-exhaustive list of reasonable adjustment examples. 

           

          Comment 

          The impact of the menopause on the workplace is certainly on the agenda with the government's research on the issue in its report Menopause transition: effects on women’s economic participation  and the Labour party's commitment to "break the stigma of menopause at work". 

          As 50% of any workforce are inevitably going to go through the menopause, employers need to be proactive. Diversity in the workplace has been proven to boost profitability and productivity, improve employee engagement and retention and enhance business reputation.  By openly supporting this group of employees, organisations can stay ahead of the curve.  

          If you have any concerns with regard to this topic, please get in touch.

           

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