Is your workplace sympathetic to the menopause?

In an episode of the Netflix series House of Cards, the American First Lady Claire Underwood opens the door of her huge refrigerator and stands there cooling off from a hot flush. The scene generated plenty of debate online, as it was a rare case of the menopause being acknowledged in a drama as an everyday occurrence.

Like period cramps, the menopause is a health condition which most women will experience at some point, usually between the ages of 45 to 55 and like any health issue it needs to be handled sensitively in the workplace.

As Gillian Reid, employment law expert with Ware & Kay in York & Wetherby explains, ‘Employers need to be alert to the HR and legal implications of menopause transition, as failure to take a sympathetic and responsible approach could see an employer facing claims of discrimination in regard to sex, age or disability.’

As highlighted more recently by Davina McCall in her documentary Sex, Myths and the Menopause on Channel 4, the range and severity of symptoms experienced by each woman varies greatly. These include hot flushes, headaches, heavy periods, sleep disturbance, poor memory, depression, anxiety and irritability. Symptoms can start years before menopause and can last several years, and for some women the effects can be severely debilitating.

According to Government Equalities Office research, Menopause Transition: Effects on Women’s Economic Participation, working women experienced gendered ageism at work and an unsympathetic culture, as well as feeling embarrassed by their symptoms. 

What are the legal risks?

Managers who are ill equipped to deal with these issues may find themselves defending their actions in an employment tribunal claim.

There have already been a few successful employment tribunal claims relating to menopause symptoms.

The first is a claim for sex discrimination and unfair dismissal brought following a dismissal of an employee on the grounds of poor performance. The tribunal found that the employee’s manager had failed to take menopause seriously as an underlying health condition, which might affect the employee’s ability to do her job. The tribunal considered that the employer would have treated a man with the same symptoms differently.

The others are disability discrimination claims. These are an important reminder that an employment tribunal can find that not just severe, but also ‘typical’ menopause symptoms can amount to a disability. Disabled employees are protected under the Equality Act 2010 and employers have to make reasonable adjustments at work for them.

It only seems like a question of time before an employee brings a successful menopause-related age discrimination claim. As part of their responsibilities for their employees’ health and safety, employers should carry out risk assessments. Assessments and any subsequent action should take into account menopause transition symptoms. 

The Women and Equalities Select Committee is carrying out an enquiry into menopause in the workplace. Submissions for evidence closed in September 2021. The inquiry is examining existing legislation, including whether menopause should be added to the Equality Act 2010 as a protected characteristic.

What can employers do?

Acas produced guidance on Menopause at work, which suggests ways in which employers can support women with menopause transition symptoms. Employers are encouraged to take any steps sensitively and to take advice where menopause may be a factor in workplace issues.

Employer interventions include:   

• introducing a menopause policy explaining the support offered;
• training line managers to increase their confidence to discuss menopause with employees;
• equalities training to increase awareness of menopause transition, with the objective that greater understanding will lead to a cultural shift;
• allowing frequent breaks to access toilets;
• improving ventilation and providing desk fans;
• flexible working;
• adjustments to hours and allowing employees to take the day off or to swop shifts on a bad day; and
• changing uniforms from synthetic to natural fibres.

We can advise you on how to support your employees experiencing menopause transition. To minimise the risk of claims, we can also guide you through any workplace issues where menopause transition may be a factor. Please contact Gill Reid in the Employment Law team on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email gillian.reid@warekay.co.uk.