You would think that it didn’t need to be spelt out that more than half of the population are going to experience the menopause during their lifetime. Why, therefore, is it such a taboo topic often avoided in the workplace?
At a time when women over 50 are the fastest growing section of the workforce, it was deeply disappointing that the 2023 survey conducted by the CIPD found that slightly more than 2 in 3 (67%) menopausal women were negatively affected at work and that almost 1 in 6 women aged 40 to 60 in the UK have considered leaving their jobs because of a lack of support with menopausal symptoms. Shockingly, 1 in 10 (9%) of women who have experienced menopause symptoms have said that they have led to disciplinary action against them.
The symptoms and impact
We know that symptoms of the menopause are a lot more extensive than the stereotypical “hot flush”. They include chronic sleep disturbance, impact on memory, concentration and focus, low immune systems and urinary problems. Mental health symptoms can include lack of confidence, stress, anxiety and depression.
This inevitably impacts on the work life experienced by these individuals. Examples of this are that certain working environments and dress codes are likely to make it extremely uncomfortable for those sensitive to temperature. Working systems, hours or nature of work are going to be tougher on those who need to disappear to the toilet more often or are struggling with concentration. It may impact these individuals’ ability to turn around work as quickly and with the same confidence. It will expose them to an increased possibility of performance management, or worse, disciplinary action or becoming the brunt of office banter and jokes.
In March 2023 the government confirmed that it would not introduce menopause as a new protected characteristic under the Equality Act 2010 as it was considered that the already protected characteristics of sex, age and disability provide adequate protection against discrimination and harassment caused by menopause.
However, as the debilitating effect of menopausal symptoms is increasingly being spoken about in the media and by celebrities, we have started to see an increase in menopause related claims being brought as claims of discrimination by reason of other protected characteristics, namely age, sex and disability discrimination.
The recently reported 2023 case of Anderson v Thistle Marine (Peterhead) demonstrates that those suffering from menopause related discrimination at work can receive significant compensation. Here Ms Anderson was awarded £37,379.56 from her employer because she had been discriminated against and harassed on the grounds of sex. Her employer made comments such as “everybody gets menopause – just get on with it” and was found to have treated her unlawfully.
Symptoms of the menopause can vary in severity but, for some, they can have a significant and longer term impact on day to day activities and the ability to perform as usual in the workplace to the extent that it can amount to a disability as defined by the Equality Act.
In a recently reported Employment Tribunal decision considering this point (Donnachie v Telent Technology Services Limited), Mrs Donnachie reached the point of experiencing hot flushes 7 or 8 times a day, which were regularly accompanied by palpitations and feelings of anxiety. These could increase to 10 to 12 times per day if she was under stress or pressure. She was also experiencing sleep disturbance and began to experience fatigue, memory difficulties and concentration difficulties. The Employment Judge concluded that she could “see no reason why, in principle, “typical” menopausal symptoms cannot have the relevant disabling effect on an individual…. I have little hesitation in concluding that the effect of her menopausal impairment on her day to day activities is more than minor or trivial. The range of her daily activities and her ability to undertake them when she would wish with the rhythm and frequency she once did is markedly affected as set out above. It would undoubtedly be even more so were she not taking HRT.” As a result, the judge concluded that the Claimant was disabled by reason of menopause or symptoms of menopause, enabling her to continue with her claim.
In the 2017 case of Davies v. Scottish Courts and Tribunals Service, Ms Davies was disciplined and subsequently dismissed by reason of conduct that she said was caused by being forgetful and confused due to symptoms of her perimenopause. The Employment Tribunal held that Ms Davies’ dismissal was because of conduct arising from her disability and her employer was unable to justify the treatment as being a proportionate means of achieving a legitimate aim.
In the 2019 of A v Bonmarche Limited, the Claimant was subjected to demeaning and humiliating remarks from her manager, who would criticise her performance and relate it to being menopausal. He also refused to adjust the temperature in the shop to take account of the Claimant’s requirements. She subsequently suffered a breakdown and resigned. The Tribunal upheld her claims for sex and age harassment.
Menopause in the workplace – is there enough protection for employees?
There is therefore welcome evidence that current legislation can enable menopausal people to seek redress in circumstances where they have suffered unlawful discrimination. There is concern, however, that it should not be enough to provide protection only in the event of extreme symptoms or treatment being suffered.
The Health and Safety at Work Act 1974 is also a source of protection for menopausal people. It provides for safe working, which extends to working conditions when experiencing menopausal symptoms. By law, employers should not forget that by being responsible for the health and safety of their staff, risk assessments should also cater for staff affected by the menopause, including ensuring that symptoms are not exacerbated by the workplace or work practices, and therefore make adjustments where necessary. This provides some reassurance for those suffering lesser symptoms that may be addressed by such changes taking place.
There have been several calls made for further legislation to require all employers to put in place a workplace Menopause Policy to protect people going through the menopause against discrimination whilst at work. Indeed, many progressive organisations are already putting these in place to ensure that everyone in the organisation understands what the menopause is, how it affects people and to set out what support is available to staff affected. Importantly, the policy can demonstrate how an organisation is open to talk and listen sensitively about the effects of the menopause.
The Equality and Human Rights Commission (EHRC) has said it will be soon launching new menopause guidance for employers. There is therefore optimism that we can bring an end to women leaving businesses at the peak of their experience needlessly.
How Moore Barlow can help
Should you need advice on how to support staff through the menopause or want us to assist in creating a menopause policy, contact Moore Barlow today.
We are also able to help if you think you have been unfairly discriminated against due to the menopause.
World menopause day 18th October 2023
More information on World menopause day with white paper, fact sheets and downloads.