Menopausal women are the fastest growing working demographic in the UK, according to a recent Government report. Yet support for the potentially debilitating symptoms of the menopause is absent from many workplaces. 

There are over five million women aged 40-55 in the UK in the workplace and it’s thought 80% of these women will suffer symptoms of menopause transition whilst in employment. Employers should be aware of the effect that the menopause can have on their employees and implement ways to support them. Failure to do so may lead to legal exposure.

Menopause transition symptoms

There are a wide range of both physical and mental symptoms associated with the menopause, including heavy and/or irregular periods, hot flushes, depression, anxiety and mood swings. The experience of menopause transition can vary but these symptoms can be severe and prolonged.  Menopause symptoms can affect relationships with colleagues, cause problems with decision making, concentration and memory and affect levels of absence.

Employers should have in place policies and procedures to ensure that if an employee’s work is affected by menopause symptoms, it is dealt with sensitively. If employers do not do this, they run increased risk of claims for discrimination, both on the grounds of sex and disability. Employers who fail to manage these issues in a supportive manner also risk losing key talent from this demographic of their workforce, potentially affecting their senior leadership talent pools.

The growing call for more awareness and support

As part our Diversity Series back in 2019, we wrote about the potential legal risks for employers and commented on the limited number of employment tribunal claims where menopause had been at issue. Since then there have been a number of key developments:

• In the UK, Carolyn Harris MP has called for a “menopause revolution” and her private member’s bill on the menopause will be debated in UK Parliament on 29 October 2021; 
• On 23 July 2021, the Women and Equalities Committee launched a new inquiry seeking to understand whether current legislation goes far enough to support women experiencing the menopause at work. The terms of reference include whether current legislation sufficiently protects employees from discrimination in the workplace associated with the menopause and what more can the UK Government do to address this issue. Submissions to the inquiry can be made until 17 September 2021;
• ACAS has issued guidance for employers to help manage the impact of menopause at work. 

Legal risks 

The latest Employment Tribunal statistics demonstrate that the growing call for more awareness and support for menopause in the workplace is reflected in an increasing number of Employment Tribunal claims. When we wrote back in 2019, there had been just two Employment Tribunal decisions on menopause transition in the UK. However it has recently been reported that there were six Employment Tribunal cases referencing the claimant’s menopause in 2019, 16 in 2020 and 10 in the first six months of 2021 alone. 

Is disability discrimination a risk?

Menopause transition is not a disability in itself, but its physical and mental symptoms can fall under the Equality Act 2010 definition of disability if they have a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities.

In Davies v Scottish Courts and Tribunals Service, the claimant had been suffering from menopause transition symptoms for two to three years prior to dismissal. The claimant was dismissed on the basis that her employer felt that she had lied about an incident involving a jug of water.  Because of her symptoms, she could not recall whether the water contained her medication and advised her colleagues that there was a chance that they had consumed water containing her medication. The Tribunal held that the dismissal was for conduct arising from her disability. It was not convinced by the employer seeking to justify the claimant’s dismissal as a proportionate means of achieving a legitimate aim (having honest and trustworthy staff).

In the recent case of Ms A Kownacka v Textbook Teachers Limited, Ms Kownacka was successful in bringing a disability related harassment claim as a result of her employer’s lack of sympathy that she would face menopause at 37 and be unable to conceive children due to cancer. 

What about sex discrimination?

Failing to properly understand menopause transition symptoms can give rise to claims of direct sex discrimination.

In Merchant v BT plc, the claimant was dismissed following a final warning for performance. Her manager was aware that she was suffering from symptoms of menopause transition and that this affected her level of concentration. In breach of BT’s performance management policy, the claimant’s manager dismissed her without carrying out any further medical investigations around her symptoms. The Tribunal upheld the claimant’s claims of direct sex discrimination and unfair dismissal. The Tribunal held that the claimant’s manager would never have adopted the irrational approach he did with other, non-female-related conditions.

What can employers do to support employees going through menopause transition?

• Gauge awareness and understanding among employees and run training programs to educate employees about menopause transition – not just those who may be directly affected by menopause transition but all employees. Aim to normalise the conversation around menopause and not see this as a taboo subject; 
• Train managers on how best to support employees who are suffering from menopause transition symptoms;
• Consider whether existing policies and procedures (e.g. health and wellbeing, sickness absence, performance management) need to be amended to refer to menopause transition or whether a specific menopause policy is required;
• Provide information on how employees experiencing the menopause can get the support they need;
• Encourage informal support networks for employees; and
• Consider reasonable adjustments to assist employees who are suffering from menopause transition-related symptoms in the workplace, such as improvements to the working environment (e.g. ventilation, appropriate and comfortable toilet and hygiene facilities). Encourage individuals to be open about what adjustments may be helpful for them. 

This is clearly a developing area and employers are well advised to keep up to date with ACAS and other relevant guidance, the developing body of case law and any legislative reforms that may be coming down the track.