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30 Sep 2021

Menopause and the workplace: what do employers need to know?

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According to recent headlines a growing number of women are taking their employers to tribunal referencing the menopause at the centre of their unfair dismissal and sex discrimination claims. Recent data provides that in 2018 there were five Employment Tribunal cases related to menopause, six in 2019 and sixteen in 2020. In the first half of 2021, there have been ten tribunal cases and the number of cases is expected to increase1

We’ve also seen the launch of an inquiry from the Women and Equalities Committee entitled An invisible cohort: Why are workplaces failing women going through menopause?”.  The inquiry aims to scrutinise existing legislation and workplace practices and ask if enough is being done to address the issue. 

As the increased media attention and celebrity conversations further raise the profile of this topic, and as we embark on October which is “World Menopause Month”, employers are encouraged to reflect on their practices and take action.

What is the menopause and how can it affect people and the workplace?

Whilst the menopause is usually associated with women, many non-binary, trans and intersex people experience menopause too. 

The menopause usually occurs between the age of 45 and 55, a year after a person's last period. In the UK the average age to reach the menopause is 51. However, menopausal symptoms can begin many years before, and around 1 in 100 women experience the menopause before the age of 40.

The menopause affects people in different ways. Common symptoms can include fatigue, hot flushes, insomnia, difficulty concentrating, forgetfulness, anxiety, depression, mood swings and panic attacks. 

Why should employers take action?

Research has shown that the female working population over the age of 45 has increased and is expected to increase in the future.  It also highlights that women experiencing severe menopausal symptoms tend to either take extensive periods of sick leave or even resign. This means businesses may see a sudden loss of knowledge, talent and experience if they don’t find ways to support employees going through the menopause.   

Employers also have a legal duty to protect the health and safety of their workforce and a failure by employers to recognise the impact of menopause in the workplace may also expose them to a number of legal risks.

What are the legal issues relating to the menopause?

Discrimination

Menopause is not specifically protected under the Equality Act 2010, however if an employee is treated unfairly because of the menopause, this may amount to discrimination on the grounds of one or more protected characteristics such as sex, age and disability.  Employers should also be aware that non-binary employees and trans men may also experience the menopause and should not be discriminated against.

  • Sex discrimination
    In the context of the menopause sex discrimination may occur, for example, where an employer treats a woman’s menopausal symptoms less seriously than it would a male employee’s health condition when considering performance in a performance management process.
     
    Employers should also be aware of indirect discrimination claims in the event they have policies or practices that appear to be neutral, but which would disadvantage those who are suffering from menopausal symptoms.
     
  • Disability discrimination
    The Equality Act 2010 defines disability as a physical or mental impairment which has a substantial and long-term (at least 12 months) adverse effect on an individual's ability to carry out normal day-to-day activities. Although the menopause is not classed as a disability in and of itself, Employment Tribunals have accepted that severe menopausal symptoms can amount to disability, but it will be assessed on a case-by-case basis.
     
    Employers have a duty to make reasonable adjustments where they are aware or should reasonably be aware of an employee's disability. This may mean adjustments to the working environment (e.g. increased ventilation or desk fans), changes to sickness policies where absence is due to menopausal symptoms or adjustments to flexible working approaches where particular arrangements will assist those experiencing certain symptoms.
     
  • Age discrimination
    It’s clear that the menopause will affect those within a certain age bracket.  Accordingly, employers need to be aware of the possibility of direct or indirect age discrimination depending on any action they take or policies they have in place which may cause menopausal employees to be treated less favourably.

Harassment

Women may be subject to unwanted behaviours or comments related to the menopause which may cause distress. This type of behaviour could amount to harassment e.g., on the grounds of sex, for which employers can be liable.

Health and safety

Employers have a legal duty to ensure the health and safety of their employees. Menopausal employees, in particular those suffering from severe symptoms, may need adjustments to their working conditions to help with their health and well-being. Employers are required to conduct risk assessments which should include the specific risks and needs of menopausal employees to ensure the working environment is appropriate for them.

Constructive dismissal

Depending on how the employer responds to employees experiencing the menopause there is always the risk that if the employer acts in a way that breaches the employee’s trust and confidence, the employee may bring a constructive dismissal claim.

What can employers do?

Raise awareness and provide training

The menopause has historically been a taboo topic about which many felt uncomfortable speaking. Employers are encouraged to train their employees and line managers on what the menopause is and how it affects individuals. Without understanding the symptoms and the effects these could have on the individual, employers are likely to be unable to effectively assess whether certain measures or adjustments need to be made.

In their efforts to raise awareness, employers should consider marking World Menopause Month (which falls in October) and World Menopause Day (Monday, 18 October 2021) by organising training and events that would educate employees, especially in managerial roles.  They can also signpost staff to reliable resources to find out more about the menopause.

Introduce a menopause policy

Employers should consider creating a menopause policy setting out an employer's approach to dealing with workplace issues relating to the menopause. Such a policy could encourage open conversations between managers and staff about the menopause, as well as detailing any support and adjustments which can be offered to further assist employees.

Risk assessments

In line with an employer’s health and safety obligations, they should conduct risk assessments that consider the needs of menopausal staff. Adjustments to the workplace such as providing desk fans, good ventilation, natural light and access to quiet spaces, as well as other adjustments may help those suffering from menopausal symptoms.     

If you have any questions on the topic covered in this alert or would like us to draft a menopause policy for you please contact Paul Reeves, Leanne Raven, Imogen Heywood or your usual Stephenson Harwood contact.
 

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KEY CONTACT

Paul Reeves

Paul Reeves
Head of employment

T:  +44 20 7809 2916 M:  +44 7919 694 135 Email Paul | Vcard Office:  London

Imogen Heywood

Imogen Heywood
Associate

T:  +44 20 7809 2501 M:  +44 79 3550 3767 Email Imogen | Vcard Office:  London

Leanne Raven

Leanne Raven
Senior knowledge development lawyer

T:  +44 20 7809 2560 M:  +44 7827 353 108 Email Leanne | Vcard Office:  London