The ‘hot topic’ of Menopause in the workplace

The Employment Team address the increasingly topical issue of managing and supporting staff in the workplace in relation to menopause.

 

What is the menopause?

 

The menopause is part of the natural ageing process in a woman’s life, usually occurring between the age of 45 and 55, and is medically said to have occurred when a woman’s menstrual cycle has ceased for 12 consecutive months. In the UK, the average age for a woman to reach the menopause is 51.

 

We will use the term menopause as an umbrella term to cover:

 

• perimenopause, ie the period preceding the menopause when a woman’s hormonal levels begin to change, which usually begins from around the age of 45

 

• menopause, and

 

• the post-menopause period, ie the time after menopause has occurred

 

On average, menopause symptoms last between four and eight years, but for about 10% of women they can continue for up to 12 years. Symptoms can begin during the perimenopause and continue post-menopause; they do not cease simply because the technical menopause has occurred.

 

In some instances, menopause will be instant and there will be no perimenopause period, eg as a result of a surgical operation like a hysterectomy or medical treatment, like chemotherapy.  This can also affect younger women.

 

The menopause affects most women and other people who have a menstrual cycle, and this can include trans individuals, people with variations of sex development (VSD), and those who identify as non-binary.

 

Menopause symptoms

 

The menopause affects women in different ways; the types of symptoms, how severe they are and when and for how long they occur, will vary from woman to woman. Three out of four women experience symptoms; one in four could experience serious symptoms. Symptoms can last on average four years but for some can last much longer. Common physical and psychological symptoms of the menopause include:

 

• fatigue

 

• night sweats

 

• hot flushes

 

• headaches and migraines

 

• skin irritation

 

• dry eyes

 

• urinary problems

 

• muscle and joint stiffness and pain

 

• heavy and/or painful periods

 

• insomnia/difficulty sleeping

 

• difficulty concentrating and forgetfulness (‘brain fog’)

 

• anxiety or depression

 

• mood swings

 

• panic attacks

 

How menopause affects the workplace

 

Properly managing the effects of the menopause, supporting and creating a positive and open environment between an employer and someone affected by the menopause can help prevent the person from:

 

• losing confidence in their skills and abilities

 

• feeling like they need to take time off work and hide the reasons for it—research suggests 14 million work days are lost each year due to menopause symptoms

 

• having increased mental health conditions such as stress, anxiety, depression

 

• leaving their job—the menopause has been called the ‘silent career killer’.

 

Discrimination and other prohibited conduct

 

Menopause is not specifically protected under the EqA 2010.  In fact, you may all recall that the Government recently ruled out adding menopause to the list of protected characteristics, following a consultation process.

 

However, if a worker is treated unfairly because of the menopause, this may amount to discrimination on the grounds of one or more of the protected characteristics of age, disability, gender reassignment and sex.

 

A menopausal worker may be protected under the EqA 2010 from the following types of prohibited conduct:

 

• direct discrimination

 

• indirect discrimination

 

• harassment

 

• victimisation

 

• discrimination arising from disability

 

• (a failure to comply with) the duty to make reasonable adjustments

 

It should also be remembered that an employer can be held responsible for the actions of their staff.

 

Protected characteristics

 

It is possible that a worker may bring an age discrimination claim and a sex discrimination claim out of the same facts.

 

Depending on the circumstances, the physical and physiological symptoms of the menopause may amount to a disability under the EqA 2010. Although menopause symptoms may be recurring but intermittent and fluctuating, if they have a substantial and long term (at least 12 months) adverse effect on the worker’s ability to carry out their day-to-day activities, this could amount to a disability.

 

Whether or not menopausal symptoms will amount to a disability will be fact specific:

 

• in Gallacher v Abellio Scotrail, the employer conceded that the employee was disabled as a result of menopausal symptoms.

 

• the EAT also recently held that an employment tribunal had erred in law in holding that the claimant who had experienced severe menopausal symptoms over a period of at least two years, including insomnia (causing fatigue and tiredness), light headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines and hot flushes, and who was under the care of a specialist menopause consultant, was not a disabled person, and remitted the case to a new tribunal to determine whether her symptoms amounted to a disability.

 

• the Manchester employment tribunal in McMahon concluded that an employee was not disabled as her menopause symptoms, which included brain fog, stomach problems, insomnia, fatigue and joint pain, were not substantial and adverse.

 

• in contrast, the employment tribunal judge in Donnachie stated ‘I see no reason why, in principle, “typical” menopausal symptoms cannot have the relevant disabling effect on an individual’ and concluded that the claimant, who suffered menopausal symptoms including hot flushes, disturbed sleep, fatigue, memory and concentration problems and anxiety, was disabled

 

The Acas guidance highlights that age discrimination and harassment can also affect younger people who go through medical or early menopause, eg it could be age discrimination if a colleague makes a rude joke about young people going through the menopause.

 

Gender reassignment is a protected characteristic under EqA 2010. A person has the protected characteristic of gender reassignment if they are planning to go through, are going through or have gone through a process (or part of a process) to reassign their sex. This could be by changing physical or other attributes related to someone’s sex.

 

If an employer puts an employee or worker at a disadvantage or treats them less favourably because they have, or someone thinks they have, the protected characteristic of gender reassignment, this could be discrimination.

 

Direct discrimination

 

A person directly discriminates against another person where:

 

• they treat that person less favourably than they treat or would treat others, and

 

• they do so because of a protected characteristic (eg sex, disability, age, gender reassignment)

 

A person may be treated less favourably because:

 

• they have menopausal symptoms

 

• someone they are associated with, such as partner or spouse is experiencing the menopause—known as direct discrimination by association

 

• they are perceived to be experiencing menopausal symptoms, or of menopausal age, regardless of whether or not that perception is correct—known as direct discrimination by perception

 

An employer treating menopause symptoms less seriously than it would a male worker’s health condition when considering a drop in job performance as part of a performance management process could potentially amount to direct discrimination.

 

In Merchant v British Telecom ET, Ms Merchant was dismissed by her employer following a final warning for poor performance. Prior to her dismissal Ms Merchant had given her manager a letter from her doctor which informed the employer that she was going through the menopause which could affect her concentration levels. However, the manager undertook no further medical investigation into her symptoms and did not refer her for an occupational health assessment. This was in breach of the employer’s performance management policy. Ms Merchant successfully claimed unfair dismissal and direct sex discrimination.

 

The employment tribunal held that the manager would not have adopted ‘this bizarre and irrational approach’ with any condition which affected both sexes or when dealing with a man suffering comparable symptoms. Nor should the manager have compared his own wife’s experience with that of the claimant. It upheld the claimant’s claims for unfair dismissal and direct sex discrimination.

 

By way of contrast, in Burchall, the claimant’s claim for direct sex discrimination and harassment did not succeed because she had failed to specifically mention that the menopause was causing her any particular problems at work. As such, the fact she was menopausal had not been taken into consideration by the employer when deciding to dismiss her following concerns about her work and attitude.

 

Indirect discrimination

 

Essentially, this is where a Provision, Criterion or Practice puts a class of individuals at a disadvantage and it cannot be argued that is ‘a proportionate means of achieving a legitimate aim’

 

An example of a PCP could be an absence procedure, performance management policy, or uniform requirement (eg synthetic material which can exacerbate hot flushes and skin irritation).

 

In Sloan, the claimant brought a claim for indirect sex and age discrimination, arguing that air quality and temperature in an office, which were lower than the required standard, amounted to a PCP which placed women aged between 50 and 65 (ie the average age range at which women generally go through the menopause) at a significant disadvantage compared with male colleagues and with female colleagues outside the 50–65 age bracket. Ultimately, the Scottish tribunal rejected the claims on various grounds, including the fact that she had failed to provide any evidence to suggest that her work environment put women at a particular disadvantage compared to men or that it had put older people at a particular disadvantage compared to younger people. It is, however, one of the first reported examples of a menopause-related indirect discrimination claim.

 

Harassment

 

A person harasses another if they engage in unwanted conduct related to a protected characteristic (eg sex, age, disability) which has the purpose or effect of violating the other person’s dignity or of creating an intimidating, hostile, degrading, humiliating or offensive environment.

 

The perpetrator may be liable for harassment even if it was not their intention to violate the victim’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment, if the conduct had that effect on the victim, provided the victim’s reaction is not bizarre or hypersensitive.

 

In relation to the menopause, the Acas archived guidance on the menopause at work gives the example of unwanted comments, jokes, banter or ridicule about a woman’s menopause symptoms as examples of what could amount to harassment or sexual harassment. Other examples might include unwanted comments etc about menopause treatment a woman might be having, eg HRT.

 

In A v Bonmarche, the Dundee employment tribunal found on the facts that the employer had treated the claimant, a woman going through the menopause, less favourably on grounds of age and sex than it would have treated someone who was not a woman of menopausal age. Her claim for harassment also succeeded—her manager humiliated her in front of other staff and referred to her as a ‘dinosaur’ in front of customers. The claimant was awarded an injury to feelings award of £18,000. Although only a first instance decision and therefore not a binding authority, the judgment is a useful example of what may amount to menopause-related harassment.

 

Victimisation

 

Broadly, where the individual suffers as a result of raising or being involved in a discrimination claim.

 

An example of victimisation would be a member of staff who was refused promotion as the result of having been a witness in a grievance brought against a manager for the harassment of a menopausal colleague.

 

Discrimination arising from disability

 

The EqA 2010 protects a worker against what is called ‘discrimination arising from disability’. This is where a worker is treated unfairly, not because of their disability, but because of something connected to it.

 

Examples of menopause-related discrimination arising from disability are:

 

• a worker being dismissed because they forgot to do a task set by their employer as they have become forgetful and confused as a result of anxiety caused by their menopause. Their anxiety leading to the confusion and forgetfulness would have to meet the EqA 2010 definition of disability

 

• dismissal of a menopausal worker due to a poor absence record caused by having to take periods of menopause-related absence (again, provided the symptoms amounted to a disability)

 

Duty to make reasonable adjustments

 

The duty to make reasonable adjustments will apply where a disabled person is put at a substantial disadvantage, in comparison with persons who are not disabled.

 

Types of Reasonable Adjustments

 

If menopause symptoms do affect a woman’s ability to undertake normal day-to-day activities, the employer is under a duty to make reasonable adjustments. For example, if a unventilated or hot office puts a menopausal worker at a substantial disadvantage, the employer will be under a duty to make reasonable adjustments. When considering whether a menopausal woman is at a disadvantage, the fact that she may, for example, take HRT to reduce the symptoms should not be taken into account.

 

Refusal by an employer of a request for reasonable adjustments could result in a tribunal claim.

 

Examples of reasonable adjustments an employer could consider making include:

 

• providing a fan or air conditioning

 

• providing chilled drinking water

 

• adopting flexibility around toilet breaks

 

• offering shower facilities

 

• allowing more breaks to be taken during working hours

 

• providing an option for a woman to leave work suddenly

 

• moving a worker’s desk near to a window that opens

 

• providing a rest or break room that offers a quiet place to work or a place to rest for a while to help manage symptoms

 

• allowing flexibility to uniform in terms of material (synthetics may exacerbate symptoms) and perhaps providing layers which can be taken off or added to help a worker manage hot flushes

 

• allowing medical appointments to be taken during working hours

 

• allowing women to report menopause-related absence to a female manager

 

• offering flexible working arrangements including an earlier or later start or finish time to negate the need to travel on crowded transport or to accommodate a poor sleeping pattern

 

• allowing home working when practicable

 

• allowing changes to the worker’s duties or role

 

• considering a request for part time working

 

• allowing a job share arrangement

 

Both employer and worker may find it helpful to:

 

• record any agreed changes in writing. Given that symptoms may change over time, consider whether the agreement should be expressed to be capable of being adapted if the employee’s symptoms (and reasonable adjustments) change

 

• set up regular follow-up meetings to consider how the adjustments are working for the worker and for the employer; the frequency of the follow-up conversations will differ from person to person, depending on how symptoms and needs change

 

Even where a worker’s menopause symptoms are not severe enough to amount to a disability and therefore there is no duty on the employer to make reasonable adjustments, an employer may wish to consider agreeing to changes in the workplace that might help the worker manage their symptoms.

 

Supporting workers experiencing the menopause

 

According to the Acas guidance on supporting staff through the menopause, it is important for employers to support staff through every stage of the menopause—having early and regular follow-up conversations with staff to understand their needs can help make sure support and procedures are in place so they can continue to do their job effectively.

 

Changes at work

 

Whether or not a worker going through the menopause has severe enough symptoms to amount to a disability, an employer should consider agreeing to changes in the workplace that might help the worker manage their menopausal symptoms while working. An employer should be prepared to make changes to help the employee continue to work, and minimise, reduce or remove any obstacles affecting job performance because of symptoms.

 

Ideally these changes should not be imposed unilaterally by an employer, but should be agreed with the worker.

 

According to the Acas guidance on talking with staff about the menopause, changes an employer could make to help support the person include:

 

• being flexible where possible over start and finish times to help the person manage their symptoms

 

• allowing them to take breaks when needed

 

• providing a private area where they can rest to help manage their symptoms

 

• allowing them to work from home when practical

 

• allowing them time off if they cannot carry on working that day

 

• changing certain duties in their role

 

• where appropriate, letting the person have control over their working environment, eg having a desk next to a window that opens or providing them with a fan

 

Open culture

 

Acas guidance notes that for employers, the menopause is a health and wellbeing concern for staff and needs to be handled sensitively.

 

The menopause can often be a taboo subject at work, with many women feeling they cannot disclose the real reason for their absence as menopause-related, particularly if their manager is a man.

 

Acas recommends that managers should be encouraged to talk about the menopause with all staff alongside other equality and diversity and health and wellbeing topics to normalise the topic.

 

An employer should aim to create an open culture where employees feel confident to approach a manager to discuss their symptoms and where managers feel comfortable to offer guidance, adjustments or solutions to allow the worker to continue in work or to minimise or remove dips in performance or attendance.

 

An employer can foster an open culture by:

 

• making clear that it will manage menopause issues sensitively and with dignity and respect

 

• talking openly and respectfully about the menopause so that employees have the confidence to speak up if they are struggling at work as a result of the menopause

 

• communicating a positive message around the menopause and normalise discussions around the topic

 

• treating menopause symptoms as a medical condition

 

• including menopause as part of any wider occupational health awareness campaign

 

• providing training and guidance both for managers and for employees

 

• including fostering an open culture as a principles and policy objective in a menopause policy

 

• having early and regular follow-up conversations with staff to understand their needs can help make sure support and procedures are in place so they can continue to do their job effectively

 

Menopause or wellbeing champion

 

Employers may wish to consider appointing a menopause or wellbeing champion within their workforce to be a point of contact for workers and for managers who need advice or someone to talk to about menopause-related issues.

 

Supporting trans, people with variations of sex development and non-binary employees

 

It might not always be obvious who is experiencing the menopausal symptoms. As mentioned above, according to the Acas guidance, it is important for employers to remember that the menopause affects most women and other people who have a menstrual cycle, which can include:

 

• trans individuals

 

• people with variations of sex development (VSD)—some people might prefer to identify as intersex or use the term differences in sex development (DSD)

 

• those who identify as non-binary—non-binary people do not think of themselves as simply male or female

 

The Acas guidance notes that it is particularly important to support everyone equally and keep conversations confidential and private because someone might talk about their gender identity when discussing their menopause symptoms and might not want it more widely known.

 

If you would like advice from the Employment team at MLP Law in respect of any of the issues raised here or more generally, please do not hesitate to get in touch on 0161 524 1853 or employment@mlplaw.co.uk, or follow us on Twitter @HRHeroUK.