The symptoms of the menopause can by physical (e.g. hot flushes, migraines, skin irritation) but also psychological (e.g. lack of concentration, anxiety and depression). Typically, women will experience the menopause in their late 40’s/early 50’s with it lasting around 4 years, but it can start earlier or later and has been known to last a lot longer. It can also affect other individuals, for example those who have or are going through the process of changing their gender from a woman to a man.
A significant number of workers already suffer from perimenopausal (menopause transition) and menopausal symptoms and the number of individuals affected is expected to increase with people staying at work longer as the population ages. Employers are therefore becoming more alert to the issues surrounding the menopause.
Although ‘menopause’ is not in itself a protected characteristic under the Equality Act, employers need to be aware of the risk of discrimination and other claims that could arise as a result of their treatment of staff experiencing the menopause and perimenopause.
Potential claims
One example is the case of Merchant v BT PLC ET, in which M’s claims for unfair dismissal and direct sex discrimination were upheld following her dismissal for poor performance. BT dismissed her without any medical investigations despite M providing a doctor’s note explaining that she was experiencing the menopause which affected her level of concentration. In dismissing her, the manager took into consideration his wife’s experience of the menopause as relevant evidence. The tribunal held that the manager ‘would never have adopted this bizarre and irrational approach with other non-female related conditions’.
So far case law is limited to non-binding employment tribunal decisions, but it indicates the mindset of judges.
Other examples of potential claims could therefore include:
- Claims for disability discrimination where an employee is disciplined as a result of poor attendance levels caused by symptoms of the menopause;
- Claims for disability discrimination where an employee is disciplined on grounds of conduct where those actions are caused by symptoms of the menopause, e.g. forgetfulness;
- Claims for failure to make reasonable adjustments where the physical and psychological symptoms meet the definition of disability, with a substantial and long-term adverse effect on a person’s ability to carry out day-to-day activities;
- Claims for age discrimination where an employee suffers less favourable treatment as a result of menopausal symptoms; and
- Claims for health and safety breaches where the working conditions exacerbate a worker’s symptoms.
Acas has recently published a useful guidance note on managing the impact of the menopause at work which can be found here
What should employers do?
- Reassure staff of their ability to talk about and share issues on this topic, whether that is with their manager, HR or through an employee assistant programme;
- Minimise health and safety risks by completing suitable assessments of the workplace risks and ensure there is a suitable working environment to include good temperature regulation, rest areas, drinking water and washroom facilities;
- Still be mindful of data protection obligations. Information about an employee’s health will amount to a special category data and will need to be processed in accordance with your data protection policy/privacy notice;
- Train managers in identifying, understanding and dealing with menopause-related issues. Some employers are now introducing a specific ‘Menopause Policy’ to assist with this. The policy can also help manage the expectation of other staff members and address the issues in general terms to minimise the risk of data protection breaches for individuals; and
- Carefully manage sickness absence or performance issues and consider the need for medical input.
Should you have any questions on the issues set out here contact your usual adviser in the employment team or Emma McLoughlin at [email protected] or by phone on 020 8971 1088.