In the last four years there has been a significant increase in Tribunal claims for unfair dismissal and/or sex discrimination in which menopause has been cited as a key underlying factor.
According to the Menopause Experts Group, in 2018 there were only 5 cases in the Tribunal that made reference to the menopause, whereas in the first half of 2021 there has already been 10 cases. This sharp rise may partly be explained by the increased media coverage regarding the menopause which had until recently been a taboo subject, and also because an increasingly larger percentage of the workforce are likely to be personally affected by menopausal symptoms. The Office for National Statistics has reported that women aged between 50 and 64 years of age are the fastest growing economically active group, accounting for almost 4.5 million of the UK’s workforce.
It would also appear that an alarmingly high percentage of employees who go through the menopause are adversely impacted in the workplace. In 2019 BUPA and the Chartered Institute for Personnel and Development conducted a survey which found that three in five menopausal women in the UK were negatively affected by symptoms at work and almost one million women left their job due to menopausal symptoms.
Although the Equality Act 2010 does not make specific reference to the menopause, an employee can potentially bring a claim for discrimination arising from unfair treatment due to the menopause under three protected characteristics – age, sex and disability.
Age discrimination can occur because the menopause typically affects employees within a certain age bracket.
Sex discrimination may occur where an employer treats a woman who is suffering from menopausal symptoms less favourably than a male employee. This occurred in the first case involving the menopause to be heard in the Tribunal – Merchant v BT. In this case, the Claimant had been suffering from menopausal symptoms at work which affected her performance. Her manager put her on a performance management plan and refused to consider whether her poor performance was due to health reasons and instead relied on his own perceptions and beliefs regarding the menopause.
In relation to disability discrimination the Equality Act 2010 defines disability as a physical or mental impairment which has a substantial long term adverse effect on the individual’s ability to carry out normal day-to-day activities. The Tribunal has accepted that severe menopausal symptoms can amount to disability. In the case of Davies v Scottish Courts and Tribunal Service the Claimant was suffering from a range of symptoms, including memory loss. Following her dismissal, she brought a claim in the Tribunal and was awarded £14,000 for unfair dismissal and reinstated to her job. The Tribunal also found that she had been subject to disability discrimination, and she was therefore awarded a further £5,000 for injury to feelings.
Claimants suffering from menopausal symptoms have also successfully brought claims against employers for harassment and constructive dismissal due to their treatment in the workplace.
Employers should also bear in mind that non-binary employees and trans men may also experience the menopause.
On 23 July 2021 Parliament launched an enquiry into issues involving menopause in the workplace. The purpose of the inquiry is to review current employment legislation and workplace practices to ascertain whether enough is being done to protect employees from suffering adverse consequences at work due to their menopausal symptoms. It is therefore possible that an employee’s rights not to suffer less favourable treatment due to the menopause will be further strengthened leading to even more Tribunal claims.
In view of these developments, what can an employer do now to tackle issues surrounding menopause at work?
- carry out risk assessments to ascertain whether there any health and safety issues that need to be addressed
- make reasonable adjustments to support an affected employee – e.g. providing a desk fan, moving the affected employee’s desk closer to a window, accepting that the employee may need to take more frequent toilet breaks.
- consider including menopause at work policies in the staff handbook
- conduct a review of existing workplace policies to ensure that they are not likely to adversely affect employees with menopausal symptoms
- offer training to employees in managerial and leadership roles regarding how to raise and address issues concerning the menopause and the impact it can have on affected employees
- raise awareness and understanding among the general workforce. This could perhaps be achieved by encouraging employees to attend seminars and courses about the menopause and pointing affected employees in the direction of appropriate support groups
Businesses that have yet to consider how these issues may affect their workforce should consider seeking professional legal advice to review their existing policies and identify any weaknesses that may need to be addressed.
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