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Menopause in the Workplace9th Nov 2021

by Hugh Reid on 9th Nov 2021

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Menopause In The Workplace

Women over 50 are currently the fastest growing economically active group of women in the UK. 80% are in work and are holding ever more senior roles and carrying more responsibility.

According to Nuffield Health one in four women say they are struggling to cope with aspects of life due to their symptoms.

Yet due to a lack of understanding and openness around the subject of menopause, research from Menopause Experts has found that growing numbers of women are taking their employers to court citing the menopause as proof of unfair dismissal and direct sex discrimination.

According to recent UK data, published by The Guardian there were five employment tribunals referencing the claimant’s menopause in 2018, six in 2019 and 16 in 2020. There have been 10 in the first six months of 2021.

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It is thought that one in four women who experience menopausal symptoms consider leaving their job, with the resulting loss of knowledge, experience and talent. With regard to employment law both employees and employers should be aware of their rights and responsibilities.

How does the Equality Act 2010 protect employees when going through the menopause?

Under the Equality Act 2010, menopause discrimination is largely covered under three protected characteristics: age, sex and disability discrimination.

Employers should be aware of the risk that some managers, for example, may ignore the impact of menopausal symptoms because of stereotypical attitudes that it is simply ‘a woman’s issue’, particularly if a male employee has experienced stress or some other medical issue and the employers have made allowances and accommodations to support them.

For an age discrimination claim, it may be more difficult to argue that no comparator is needed, because the menopause can occur naturally, or be triggered, at a relatively young age – it is not restricted to a particular age group.

Indirect Discrimination (ID) – occurs when an employer applies an apparently neutral provision, criterion or practice (PCP) and this puts workers sharing a protected characteristic (sex) at a particular disadvantage – e.g. requirement to wear a uniform, work particular shifts or take breaks at a particular time. A PCP can be justified if it can be shown that it is ‘a proportionate means of achieving a legitimate aim’. It would be difficult for an employer to objectively justify ID if they have failed to take any steps to explore or accommodate the employee’s menopause-related symptoms.

Harassment & Victimisation – an employee may be able to establish harassment on the basis of sex, age or disability if for example colleagues make jokes about hot flushes. If they complain about this and they in turn suffer any detriment than this would be victimisation.
Disability Discrimination – depending on the effects, the menopause could meet the statutory definition of a disability. Employers should remember that the Equality Act 2010 focuses on the effects of a condition and not on trying to categorise its precise nature.

What obligations does an employer have to menopausal employees under the Health and Safety at Work Act 1974?

All employers have an obligation under section two of the Health & Safety at Work Act 1974 to ensure the health, safety and welfare at work for all employees,

Also the Workplace (Health, Safety and Welfare Regulations) 1992 place an overriding duty on employers to make workplaces suitable for the individuals who work in them. In the context of the menopause, these duties place employers under an obligation to help employees to manage their menopause in the workplace and to ensure that their working conditions do not exacerbate any symptoms.

Can I ask for adjustments to my job role, working hours or conditions so I can better manage my menopausal symptoms?

By law, you have the right to make a flexible working request if; you’ve worked for your employer for at least 26 weeks, you’re legally classed as an employee and you’ve not made any other flexible working request in the last 12 months.

This could include a change to your working hours or days. Also, if your symptoms amount to a disability, your employer has a duty to make reasonable adjustments.

My employer is not sensitive to the impact the menopause is having on my performance and I’m at the end of my tether. If I feel compelled to resign, can I claim constructive dismissal?

Any employee who suffers less favourable treatment because of their menopause could bring a claim for Direct Discrimination (DD), on the grounds of sex, age and / or disability.

It may be possible to argue that the menopause is indissociable from sex, in which case they would not need a male comparator. Otherwise, to succeed with a claim for DD the employee would need to show that they were treated less favourably than a male employee with a comparable health condition.

Can I claim unfair dismissal if I am dismissed because my performance has dropped due to menopausal symptoms?

If your performance has been affected, your employer should work with you to address the issues and help you to improve.

There have been cases of unfair dismissal – in Merchant v British Telecommunications the Employment Tribunal found a dismissal to be both unfair and discriminatory because the employer failed to investigate the effects of the menopause on the employee’s performance.

What can firms do to support their staff?

In recent research by Forth 72% of women said that their workplace needed to improve the level of support that was available for individuals experiencing symptoms of the menopause.

In order that women start talking more openly – or even privately with a trusted colleague – employers must normalise menopause in the workplace.

Firms must understand that being menopause savvy is critical to improving employee engagement and productivity, and in increasing attraction and retention of highly skilled female staff.


Further Information on Symptoms and Help

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Contact Coles Miller employment law solicitor Hugh Reid for advice on workplace health and safety, unfair dismissal and other employment law matters.