Menopause for thought – what do employers need to know?

Women make up a significant portion of the workforce, so it is hardly surprising that gender equality in the workplace has become an important topic in recent years.

Here Katie Ash, Head of Employment Law at Banner Jones Solicitors, a law firm who have signed, and were an early adopter of, the Menopause Workplace Pledge, talks about what employers need to know if they have a member of staff who is experiencing menopause symptoms, and how they can support them if their symptoms are affecting their work.

While the symptoms of menopause vary from person to person, for many it can be a difficult and stressful time, with some people experiencing both physical as well as emotional changes that can have a significant impact on their ability to continue working as normal.

According to the charity Wellbeing of Women, around 25% of women will have no menopause symptoms, 25% will have a horrific experience and 50% will have some symptoms at some time, so this topic has a huge impact in the workplace.

The charity also tells us that around 900,000 women have quit their job because of the menopause. “This is a truly eye-opening statistic, and so it is hardly surprising that we have seen an increase in enquiries on this matter of late” Katie says.

 

What do you need to do as an employer?

 

Have knowledge of the menopause and its effects

It is very important that employers are aware of how workers experiencing the menopause in the workplace are affected, and understand that they need to deal with issues arising in a sensitive way – not only because it’s the right thing to do, but also to keep in line with the Equality Act 2010 which protects workers from discrimination.

While menopause itself is not a protected characteristic, sex, age and disability are. Discrimination claims can and have been brought by employees on the basis of these characteristics (see notable case examples below).

Any worker who is treated less favourably as a result of symptoms associated with menopause could bring a claim against their employer if they feel they have been treated less favourably as a result. This also means that menopause symptoms should not factor into any decisions made by employers relating to, for example, promotions or redundancies.

Educating and training managers on how to approach issues relating to menopause can help to mitigate the risk of workers bringing employment tribunal claims.

 

Consider making reasonable adjustments

As with any ongoing mental or physical condition, employers of workers suffering from menopause symptoms that are impacting on their work, should consider whether any reasonable adjustments can be made – either to working patterns, location or role-related tasks – to remove any disadvantage that the worker may be experiencing because of menopause.

For example, something as simple as a more relaxed dress code, more flexible working times, regular breaks, or even simply moving a workspace so that it is closer to better ventilation, might make a real difference.

 

Communicate effectively

One of the most effective ways to manage matters relating to menopause is to keep the lines of communication with the worker open.

If a worker feels that they have the support of the business as well as the team around them, they are far more likely to open up about the challenges they are experiencing and, as a result, to discuss potential ways to manage or mitigate those issues – including any impact on their mental health which could be causing them, increased stress, anxiety or depression.

Employers can take proactive steps by providing training to managers to ensure they are equipped to offer support. This will also provide reassurance and ensure that any conversations are dealt with appropriately.

 

Don’t compromise health and safety

Of course, the Health and Safety at Work Act 1974 also plays an important role here, as it states that an employer must do what it can to ensure the health, safety and welfare of everyone at work. A failure to comply can have serious consequences for businesses, including fines and, in some cases, imprisonment.

If a worker is struggling as a result of their menopause symptoms, and it is compromising their safety or wellbeing, or the safety of others, an employer should take steps to address this.

Again, an open dialogue with workers which allows them to raise concerns about their physical or mental health will help, especially if you can demonstrate that you have put procedures in place to help the worker continue to do their job.

 

Consequences when things go wrong

Firstly, it’s important to note that there is no cap on the amount of compensation that an employment tribunal can award in a discrimination claim. Therefore, where an employer has discriminated against an employee in a menopause context, the compensation award could be significant. According to a report by the Menopause Experts Group, in 2021, there were 23 employment tribunal claims citing menopause as the basis for a claim, an increase of 44% on the 16 cases seen in the previous year.

 

Below are some notable case examples:

Menopause and Age Discrimination

In A v Bonmarche Ltd (In Administration), Ms A brought a claim for age-related harassment. Mrs A had started to go through the menopause and was, demeaned and humiliated by her male manager in front of other staff who were younger than her. The manager also called Ms A "a dinosaur" in front of customers and constantly criticised her, unreasonably attributing her alleged poor performance to her menopause. A tribunal upheld her discrimination claims stating that the comments about Ms A's menopause were clearly related to her sex and age.

 

Menopause and Disability

In Rooney v Leicester City Council Ms Rooney was experiencing several menopause symptoms, including hot flushes, sweating, fatigue, poor concentration, incontinence and joint pain. When the case came before the employment tribunal, the tribunal did not agree that these symptoms had a substantial adverse effect on Ms Rooney's ability to carry out her normal day-to-day activities.  However, this decision was overturned, and on appeal, Mrs Rooney was found to be a disabled person under the Equality Act. The employment appeal tribunal found that the original tribunal had erred in law by weighing up what Ms Rooney could do against what she could not do and had failed to consider the statutory definition of "long-term" when deciding whether Mrs Rooney was disabled, as well as concluding that Ms Rooney's symptoms did not have to have more than a minor or trivial effect on her day-to-day activities.

 

Menopause and Sex Discrimination

In Merchant v BT plc, Ms Merchant brought a claim for direct sex discrimination. Ms Merchant had given her manager, Mr Dagless, a letter from her GP which stated that she was going through the menopause, and that this could affect her level of concentration. Mr Dagless didn’t carry out any further medical investigations into Ms Merchant’s condition or her symptoms, which was in breach of BT's performance management policy. Ms Merchant was dismissed following a final warning for poor performance. Before the employment tribunal, Mr Dagless accepted that he would normally have referred an employee to Occupational Health if they raised issues relating to ill health during a performance-related dismissal, and could not explain why he did not do so on this occasion. The tribunal found that Mr Dagless had acted this way because he did not take the menopause seriously, viewing it as a “female condition”.  The tribunal found that in making these generalised assumptions, he treated Mrs Rooney less favourable than a male comparator and upheld her claim of sex discrimination.

 

Ensuring you understand your employment law obligations and training your staff is essential to ensure that you don’t end up in an employment tribunal just like BT plc, Leicester City Council and Bonmarche.

 

For help with understanding how the law applies to you or training your staff, speak to our Employment Law experts and get in touch at employment@bannerjones.co.uk