It’s World Menopause Day, a chance to shine a light on the subject, but in 2020 menopause is still taboo, especially in the workplace. Women aged over 50 are by far the fastest-growing group of workers in the British economy, with nearly two-thirds of women aged between 50 and 64 in work. This significant portion of the workforce (currently thought to be around 12%, expected to rise to 16% by 2022) will be affected in varying degrees during the course of their career, with 3 in 4 of them affected significantly by debilitating symptoms of the menopause impacting their everyday life.
There is no doubt that menopause can affect women’s performance in the workplace, with a wide range of physical and psychological symptoms proving overwhelming to those who suffer the most extreme effects. While pregnancies – another female-only medical condition – have long been a recognised condition to make considerations for in the workplace, this is yet to be the case routinely when it comes to helping women going through menopause.
The sad reality in many workplaces
Sadly in my role as an HR consultant I still regularly hear misogynistic and discriminatory views about pregnant women and mothers, whether it be about adjusting their duties, accommodating them to attend antenatal appointments, dealing with frequent short term absences due to childcare or the disruption their maternity leave will cause (have we forgotten about shared parental leave – men can now take this time off too!). Yet their protected status is obvious, and there are many statutory rights and legal protection already in place for these individuals, of which, like it or not, employers can be easily reminded.
legal considerations
However, when it comes to menopause, the condition is less obvious, the subject still very much taboo, and the legal protection for discrimination is equally less apparent. However, menopause at work is covered by certain pieces of legislation to protect employees. Under the Equality Act 2010, menopause is largely covered under three protected characteristics: age, sex and disability discrimination; The Health and Safety at Work Act 1974 provides for safe working, which extends to the working conditions when experiencing menopausal symptoms; and Acas also has codes of practice surrounding flexible working.
How symptoms affect work
Whilst some women are relatively unaffected, physical symptoms include irregular and/or heavy periods, hot flushes, night sweats, sleep disturbances, headaches and weight gain, whilst psychological symptoms can include depression and anxiety, panic attacks, reduced stamina, vertigo and short-term memory loss. It’s not difficult to appreciate that those experiencing symptoms, whether moderate or extreme, will likely have sickness absence and suffer from reduced confidence and performance in the workplace, and if disciplinary issues arise it can be too embarrassing to admit what they think might be the underlying cause. Yet, due to the subject still being taboo, women themselves, let alone their managers, are ignorant to the symptoms of menopause, and it can take some time to realise this is the possible underlying reason for a change in behaviour and performance.
And as a result of this general embarrassment around the whole issue and its impact on performance and attendance, and with no hint of support from the workplace, many women opt to leave rather than admit and ask for help with the impact of menopause symptoms on their work, so there is very little case law around discrimination linked to menopausal symptoms.
Case law related to menopause
Merchant vs. BT plc (February 2012) was the first successful employment tribunal case brought under The Equality Act 2010, yet there remains very few since. The employee successfully claimed sex discrimination when her employer failed to deal with her menopause symptoms in the same way it would have dealt with other medical conditions.
Ms Merchant was being performance-managed for capability concerns. She explained, when disciplined, that she was “going through the menopause which could affect her level of concentration at times”. Her (male) manager had received a report from her GP which indicated there were health issues related to menopause. He chose to disregard medical evidence, did not undertake any further investigations of her symptoms, and dismissed her for poor performance. He also made the additional mistake of relying on his own personal experience of his wife having undergone menopause. The tribunal upheld her claims of direct sex discrimination and unfair dismissal, saying her manager would never have adopted this “bizarre and irrational approach with other non-female-related conditions”. This was considered of particular significance because women experience menopause in different ways and with varying severity of symptoms. The failure to refer her for occupational health assessment following the letter from the GP, before taking the decision to dismiss, was considered to be direct sex discrimination. The Tribunal said that a man suffering from ill-health with comparable symptoms from a medical condition (in this case, affecting concentration) and with performance issues, would not have been treated in the same way.
And it’s not just about sex discrimination. Depending on the symptoms, an employee going through menopause may potentially also meet the definition of disability under the Equality Act 2010. Davies v Scottish Courts and Tribunals Service (2018) was such a case, where Ms Davies a court officer, experienced substantial medical problems related to menopause onset and had received medical treatment for several years. Whilst support had been given and adjustments made, she was ultimately dismissed following an incident involving confusion about whether or not she had diluted her medication in a jug of water, and her anxious reaction when she believed that others may have then drunk this. The whole matter was treated as a breach of health and safety, and her actions and reactions were considered gross misconduct, despite an occupational health report which confirmed that she had perimenopausal symptoms which affected her memory and concentration. The tribunal found that the SCTS had both unfairly dismissed Davies and discriminated against her on grounds of disability, particularly as it had failed to consider her disability’s impact on her conduct. The tribunal ruled that the claimant should be reinstated and she was awarded £14k for loss of earnings and £5k for injury to feelings.
And in terms of harassment and age discrimination linked with menopause, the case of A v Bonmarche Ltd (2019) is notable. The claimant was a senior supervisor at the retailer and had worked there a long time. Her manager led a bullying campaign, ridiculing her as she was going through menopause. He called her a dinosaur and encouraged other staff to laugh at his comments. During a restructure, her post was unaffected yet others were encouraged to apply for her role. She had some significant sickness absence but did return to her role on a phased basis working shorter hours, agreed with HR. However, her manager disregarded this and placed her on a full shift pattern just one week later, at which point she resigned, suffering a complete breakdown due to harassment and bullying she had endured. She was successful in her claim of age and sex discrimination and was awarded £28k; £10,000 was for loss of earnings, £18,000 was for injury to feelings as a result of the serious bullying and harassment she had suffered.
What should employers do?
Whilst the cases may be few, employers should take note as the cost of not doing so is far more than the legal cases themselves. The loss of valuable skills and experience and the cost of recruiting and training to replace those women who, through shame or embarrassment, opt to leave is far greater. For those who haven’t yet introduced menopause support now is the time. Set aside the possible legal claims, it’s time for each and every organisation to look to themselves and proactive ask: how are we supporting menopause in our workplace?
Supporting menopause in the workplace
Helpful steps for employers to consider to support menopause include:
Awareness training and support for managers – greater awareness among managers and colleagues of menopause as a real occupational health issue can make a significant difference
Create an open and inclusive culture – where women feel comfortable about discussing their symptoms and what impact that has on their working lives
Communicate a positive approach and attitude – including recognising menopause as part of your workplace wellbeing policy
Provide information and support to employees experiencing menopause –both formal or informal; this may be through HR or an Employee Assistance Programme.
Manage health and sickness absence – organisations should treat an employee with menopause symptoms in the same way they would manage and support someone with any long-term health condition
Workplace adjustments – physical adjustments, such as a change to the workplace or workstation, or investigating ways of cooling the working environment by providing fans, or a relaxing of the uniform or dress code if it’s uncomfortable.
Flexible working arrangements – such as allowing for more frequent breaks during someone’s work schedule, arranging additional time to carry out a task, or considering a variation to duties or working hours to help manage symptoms
Manage performance positively – performance management should, in essence, be a positive process and focus on the support needed to help everyone perform to the best of their ability, including taking on board any underlying health issues.
Useful further reading:
CIPD Guide: The Menopause at Work
