The menopause at work – why should it matter to employers?

Just because the menopause will not be specified as a protected characteristic does not mean that on the facts of any given case it could not amount to sex discrimination or disability discrimination.

The Minister for Work and Pensions and Minister for Women has confirmed that the Government is not currently planning to introduce menopause as a protected characteristic under the Equality Act 2010. However, employers should still consider the implications of menopause which is an emerging issue for employers.

This article explores why it is important and what you can do to protect your business and support your employees.

Why should my business care?

The facts speak for themselves.

• Employment Tribunals involving menopause have increased by 44% on 2020’s figures, according to analysis of court records by menopauseexperts.com.
• Around 80% of menopausal employees are in work and this figure is increasing month on month.
• 77% of menopausal women experience one or more symptoms they describe as ‘very difficult’. 69% say they experience difficulties with anxiety or depression due to menopause, 84% experience trouble sleeping and 73% experience brain fog.
• The taboo around menopause extends to sick notes. 26% of menopausal employees had taken time off work due to their symptoms but just over 30% gave menopause as the main reason on their sick note.
• It was recently estimated that over 900,000 employees left their jobs over an undefined period because of the impact of menopause symptoms. The cost to businesses of employee turnover and experienced talent is immense.

Recent cases

Although menopause is not included as a specific protected characteristic in the Equality Act 2010, of the 23 Tribunal claims that cited the menopause in 2021, 16 included claims for disability discrimination, 14 included claims for unfair dismissal and 10 included claims for sex discrimination.

In Rooney v Leicester City Council, a recent Employment Appeal Tribunal (EAT) found that an employee with debilitating menopausal symptoms was disabled. This decision re-enforces a previous non-binding, Employment Tribunal case which also said that employees suffering from significant menopause symptoms may be classified as disabled.

Mrs Rooney worked as a childcare social worker. She alleged she had suffered from disability and sex discrimination, and harassment and victimisation related to her menopausal symptoms.

Disability

Her symptoms included hot flushes and sweating, palpitations and anxiety, night sweats and sleep disturbance, fatigue, poor concentration, urinary problems and headaches. Ms Rooney had advised the Employment Tribunal that her symptoms led to her forgetting to attend events, meetings and appointments, losing personal possessions, forgetting to use the handbrake on her car and lock it, leaving the house without locking doors and windows, leaving the cooker and iron on and, spending long periods in bed due to fatigue and exhaustion, and experiencing dizziness, incontinence and joint pain.

To satisfy a Tribunal that a claimant meets the definition of a disabled person a claimant must have a physical or mental condition which has a substantial and long term adverse effect on their ability to carry out normal day-to-day activities.

‘Substantial’ means ‘more than minor or trivial’ and “long-term’ means that the condition is permanent or has lasted, or is expected to last, 12 months or more.

It was clear to the EAT that Ms Rooney’s symptoms were long term because she had been suffering from these symptoms for 2 years at the time she left the Council’s employment. Her evidence on the impact of the menopause symptoms was sufficient to show the impact was substantial.

Discrimination

Although Ms Rooney had been referred to occupational health, they were unable to meet her request for a female doctor. Ms Rooney also claimed she felt embarrassed and uncomfortable discussing her symptoms in the presence of male managers and colleagues. During an appeal hearing against a written warning for work-related stress absence, the claimant was faced with four men and felt unable to openly discuss her menopause symptoms. She further stated that when she disclosed to a male manager that she suffered from hot flushes in the office, he also said he got hot in the office, dismissing that this was a menopause symptom. Ms Rooney stated that her employer did not take my situation into account before making decisions regarding certain aspects of my employment (Written Warning for being off sick) which was an act of unfavourable treatment.

There are numerous other cases involving menopause including Davies v Scottish Courts and Tribunals Service 2017, a disability discrimination claim in which an employee was dismissed for allegedly lying. The Tribunal found that her conduct had been affected by her menopausal symptoms which caused confusion and forgetfulness. It considered that her dismissal was discriminatory, and the employee was re-instated and awarded compensation.

In Merchant v BT Plc 2012, an employee was dismissed following a final written warning for performance. Her manager was aware she was suffering from symptoms of the menopause and that this affected her level of concentration. The manager dismissed her without carrying out further medical investigations around her symptoms because of his own beliefs of how the menopause had affected other people he knew. The Tribunal upheld her claims of direct sex discrimination and unfair dismissal and commented that the manager would not have adopted the same approach he did with other, non-female related conditions. The case is a reminder that the menopause is a complicated medical condition, and that symptoms and their impact can vary greatly, such that each employee’s symptoms should be considered in isolation.

The above cases highlight the complexities in supporting employees with menopausal symptoms and ensuring that they are treated equally.

What can I do?

• A 2020 survey of 2,000 women found that 51% could name only 3 of the recognised menopause symptoms. Many employees do not know enough about the menopause and are blindsided when they experience perimenopausal symptoms, which can start several years before the menopause. Educating the workforce on the menopause will assist employees to recognise when they may have menopause symptoms so that employees can seek support.
• Make sure employees know how to access support. There are many organisations that provide useful guidance and helplines for those with menopausal symptoms. You may also want to publicise what support your company offers including access to occupational health or Employee Assistance Programmes.
• Specific training for line managers on the menopause and how to manage and support employees with menopausal symptoms can help to reduce the risk that employees will resign and/or bring Tribunal claims. Case law shows us that it is unwise for managers to draw on their own limited experiences of the menopause, and a consistent approach across the company to supporting menopausal employees will help.
• Make sure you and your managers are aware of common adjustments that can help to support employees with menopausal symptoms for example desk fans, access to cool drinking water and quiet work spaces.

Clarke Willmott has a bespoke menopause training programme available to employers. This training is designed to raise awareness, promote employee retention and avoid Employment Tribunal Claims. For more details please contact Paula Squire or Juliette Staunton.

We have referred mainly to women in this article. Please note that the above applies equally to people who experience the menopause but do not identify as women.