Menopause in the workplace?

By Tina Chander, Head of Employment Law at Midlands law firm, Wright Hassall.

Sufferers of chronic illness and disability, in general, have their employment rights protected UK law, but the same cannot always be said about those going through the menopause, which can have a similarly detrimental impact on health and wellbeing.

Recent years have seen a steady rise in menopause tribunal cases as even more employers start to question what their legal obligations are when it comes to employees who are suffering with symptoms of the perimenopause and menopause.

Because all women face menopause with varying severity, there is no one size fits all approach to managing its symptoms in the workplace. But with the employment landscape striving towards achieving better equality for all, what can businesses do to avoid landing themselves in court facing discrimination claims?

Here we summarise how the menopause impacts the workplace and what the legal considerations are;

How the menopause can affect the workplace?

The menopause typically lasts anywhere between 4 and 8 years, during which around 30-60% of women will struggle with a number of physical and/or psychological ailments such as hot flushes, night sweats, sleep disruption, fatigue, anxiety and depression.

The main problem here, is that women of a menopausal age are currently the quickest-growing demographic in the UK workforce, with 75-80% of women aged over 45 currently in work.

There are some statistics that suggest that the UK could be losing up to 14 million workdays per year because of the menopause and that 25% of symptomatic women will have considered leaving their job at some point because health concerns.

This trend is consolidated by a general unease about discussing uncomfortable menopause-related health problems with younger or male colleagues for fear of being victimised or singled out. In all, there is perfect storm brewing, ready to erupt if not handled with due care.

What does the law say?

Women in the midst of the menopause do not have the protection of any specific legislation, but can raise claims under the Equality Act 2010 which encompasses three key characteristics: age, sex and disability discrimination. Another option, is the Health and Safety at Work Act 1974 which broadly covers working conditions and as such, can reflect the plight of women whose wellbeing is not being appropriately managed by their employers.

Rather frustratingly, the courts are often inconsistent with their rulings around the matter, with often similar sounding cases achieving very different results, especially when there is a claim of disability discrimination.

Technically, menopause symptoms are covered under section 6 Equality Act (disability), assuming that the associated conditions have had a long-term, substantially detrimental impact on a person’s capability to take on day-to-day activities. However, regardless of the impact the menopause can have on person’s mental and physical health, medically speaking, Menopause is classed as a phase of life, much akin to teething or pregnancy. So, even though there have been some successful disability claims made to date, more often than not, the majority will fall under sex discrimination. This is because sex discrimination specifically involves the unfair treatment of a person because of their gender. This could mean an employer treating the menopause far less seriously than any long-standing health issues in male colleagues, for example.

What can employers do?

Employers do not have legal protection from the effect that an employee’s menopausal condition might have on a business’ performance. But there’s also no legal requirement for business owners to have policies in place to help them to tackle the effect of menopause on the workforce.

However, ACAS does endorse the creation of some kind of framework so that there are robust processes in place to help businesses navigate absenteeism or menopausal poor health.

It ought to include the provision of awareness training for all colleagues, details of any confidential support networks, and offer advice on modifying working environments to reduce the likelihood of exacerbating symptoms.

It’s advisable to prepare workplace risk assessments, which should specifically focus on matters such as ventilation, drinking water, rest periods, and flexible working practices.

It is also sensible to integrate some ideas of possible self-help actions that could help sufferers to ease their symptoms whilst at work. For example:

· Having access to natural light

· Getting adequate rest and relaxation

· Wearing natural fibres

· Eating healthily

· Drinking plenty of water

· Exercising regularly

· Not smoking

· Remaining mindful of caffeine and alcohol intake

It would be sensible to discuss all of the above with a medical professional or occupational health before putting anything into writing to ensure all policies aren’t open to misinterpretation or assumptions, which is a common starting point for a lot of discrimination claims.

What should you do if you feel you are being discriminated against?

Employees who feel that they are being victimised because of their menopausal status should be careful to keep thorough, diarised records of any correspondence, conversation, or action they have taken to try and resolve the issues at hand. If needed, this documentation will help to build a picture should there be a legal claim.

Claimants will need to showcase to the court that all possible solutions have been tried before a case is pursued, so it is vital to try and tackle issues internally in the first instance. Whether that be seeking the help of an HR partner, a manager, colleague, or a trade union representative. Anyone who might be able to help you achieve the changes necessary.

If this isn’t successful, the next stage would be to make a formal complaint or launch a grievance procedure, as this means an employer has to formally acknowledge any concerns. The Citizens Advice Bureau can provide support with this if needed.

If this still fails, relationships deteriorate, discrimination worsens, or an employee chooses or feels forced to resign because of the situation, then there could be grounds for an employment tribunal. Those in this position should seek expert legal advice at the earliest possible occassion.

An employment tribunal will help to determine if a claim falls under unfair or constructive dismissal; ‘Unfair’ being when an employer has ended a contract of employment on unreasonable grounds, and ‘constructive’ being when an employee feels that they been victimised to the point where they had no other option but to leave. For both, the employee will need to have worked at the business in question for least two years.

Employment tribunals can be stressful, deeply personal, and expensive. Given the unpredictable nature of historical rulings in menopause cases, claimants should be absolutely positive that they have exhausted all other avenues first.

However, no one should suffer in silence, and legal advice should most definitely be sought if an employer is failing in their duty of care to protect the health and wellbeing of their staff.

Tina Chander is the Head of Employment Law at Midlands law firm, Wright Hassall and deals with contentious and non-contentious employment law issues, acting for small businesses to large national and international corporates. She advises on a variety of employment law matters, including all aspects of employment tribunal proceedings and appeals.