This year has seen an increasing focus on the menopause with more open discussions about the effects of the menopause and a growing awareness of the need for employers to consider how they can support employees in their organisation who are experiencing this life stage.
Whilst experiences of the menopause will differ, for some it can be a difficult time. Symptoms can be physical (for example, hot flushes, headaches) and/or psychological (for example, memory loss, confusion, depression) and may affect an employee in the workplace. If employees are not appropriately supported it can lead to them leaving the organisation and employers missing out on valuable skills and experience, employees not reaching their full potential and, in some cases, employers can find themselves facing employment tribunal claims.
So, what can it be helpful for employers to know?
An important building block in creating an understanding and supportive workplace environment is to ensure that there is awareness and knowledge around the menopause within the organisation. This will help employers to consider how menopause could impact employees in the workplace. It should be borne in mind that the menopause can impact trans and non-binary people who may not identify as female. There are many online sources for employers to find out more about the menopause but we
the official “NHS – Menopause” a suitable port of call.
Menopause and the Equality Act
Whilst the menopause is not currently a protected characteristic under the Equality Act in its own right, employees can in some circumstances nevertheless have protection from being discriminated against, harassed, or victimised by relying on sex, age and/or disability discrimination to bring claims.
In some cases, an employee’s menopause symptoms can be such that they are considered to be a disabled person for the purposes of the Equality Act. Here, disability includes a physical or mental, long-term condition that has a substantial impact on an individual’s ability to carry out day to day activities.
In Donnachie v Telent Technology Services Ltd an employment tribunal found that an employee’s menopause symptoms were substantial enough to amount to a disability. They included experiencing hot flushes seven or eight times a day which were regularly accompanied by palpitations and feelings of anxiety, night sweats and disrupted sleep, fatigue, anxiety and memory and concentration difficulties. The thrust of the employer’s argument was that the employee experienced “typical” menopausal symptoms and could undertake all relevant activities, so the impact was not ‘substantial’ and the employee was not a disabled person under the Equality Act. The judge held that he “could see no reason why, in principle, ‘typical’ menopausal symptoms cannot have the relevant disabling effect on an individual”. He found that in this case the impact of the employee’s menopausal symptoms on her ability to carry out day to day activities was such that they amounted to a disability.
Whether menopause symptoms will meet the requirements for a disability is not always straightforward, as the recent case of Rooney v Leicester City Council shows. In this case an employee resigned because of unfavourable treatment at work whilst she was experiencing the menopause, she made several claims to the employment tribunal including disability discrimination.
The employee had suffered with the effects of the menopause for over a year and experienced severe symptoms including hot flushes, sweating and poor concentration. She spent prolonged periods in bed due to fatigue and told the tribunal that her symptoms led to things such as her forgetting to attend, meetings and appointments, losing personal possessions and forgetting to lock the house.
The employment tribunal nevertheless found that the employee’s menopausal symptoms were not a disability because they were not long-term and did not have a substantial adverse effect on her ability to carry out normal day-to-day activities.
The Employment Appeal Tribunal concluded that the employment tribunal had erred given the factual evidence before it which had not been rejected, the tribunal’s focus on what the employee could do rather than what she couldn’t and the tribunal’s failure to provide adequate reasons for the decision. The case was remitted to a different tribunal for consideration.
Did you know that if an employee is disabled under the Equality Act employers also have a duty to make reasonable adjustments to reduce or remove disadvantage in the workplace? Irrespective of whether an employee who is experiencing the menopause would be considered as disabled it’s a good idea to take steps to support them in the workplace. This is not only because there are other claims employees can bring regarding workplace treatment, such as constructive unfair dismissal, but because it can help with employee retention and employee relations.
In some situations, employers can fall foul of sex discrimination when managing employees who may be experiencing the menopause as the case of Merchant v BT PLC shows:
The employee had 24 years’ service and a good performance record before she started to experience performance difficulties. These lead to her being dismissed following a final written warning. Prior to her dismissal the employee had provided a letter from her GP saying that “she was going through the menopause, and it can affect her concentration at times”. The employee complained that she had been subjected to sex discrimination and unfair dismissal. The employee won her claims. The manager had failed to investigate the link between the employee’s symptoms and the performance matter as would have been the
usual process – relying instead on his knowledge of his wife and work colleague’s experiences of the menopause. The tribunal found this approach was irrational and suggested he didn’t take the menopause seriously. On the evidence, he would not have adopted such an approach with a non-female related condition or with a hypothetical male comparator. Furthermore, the dismissal was unfair as without proper medical investigation the manager couldn’t reasonably conclude the employee should be dismissed.
Steps to consider
If you haven’t already done so, you might wish to think about how employees in your organisation can be supported with regard to the menopause. This could include:
Creating a supportive and open workplace culture where employees feel able to have conversations with management to enable the organisation to understand their needs.
Considering what changes could be made to help employees manage their symptoms when doing their job, whilst bearing in mind that individual experiences of the menopause will differ, and employees will have a need to be supported accordingly Ensuring employees are aware of where to turn in the organisation if they have concerns or wish to discuss support in the workplace, such as adjustments. Appropriate steps taken early can help to prevent difficulties from arising.
Training managers to empower them to have appropriate conversations with employees regarding this area and to manage matters involving the menopause sensitively and appropriately.
If you have an employment law matter in your organisation you would like assistance with, please do not hesitate to contact Kingfisher Professional Services Ltd as we are here to help