Recently, there has been a notable increase in the number of Employment Tribunal cases in the UK which specifically revolve around a Claimant’s menopause. There are many preconceptions and much misinformation regarding this topic. However, it is an issue worth understanding as women aged between 45-59 make up a significant percentage of the workforce. A recent survey has shown that 25% of women with menopausal symptoms have considered leaving the workplace.
There have been cases of direct and indirect discrimination arising from menopausal Claimants. Since menopause is not a recognised protected characteristic in itself, the claims must be raised as age, sex or disability discrimination. Obviously, each case will turn on its own facts and menopause is not by definition a disability and the severity and duration of symptoms suffered will be crucial in establishing this.
An example of such a case is Merchant v BT plc (2012). In this case a female employee was struggling with a lack of concentration due to the menopause. Her male manager dismissed her for poor performance, dismissed the medical evidence that was presented, and related the employee’s experience to that of his own wife’s. The Tribunal adjudged that a man with similar concentration difficulties arising from a medical condition would not have been treated in the same way and therefore the employer had directly discriminated against the employee because of her sex.
In the case of A v Bonmarche Ltd (2019), a manager bullied, and encouraged other members of staff to do the same, the Claimant who was going through the menopause. He called her a dinosaur among other things and incited other employees to join in. After a period of sick leave the Claimant returned to her role as a senior supervisor on a phased return, but a week later the manager placed her back on full time hours. The Claimant resigned her position and was successful at the employment tribunal for sex and age discrimination and harassment.
There is currently an ongoing inquiry being undertaken by the Women and Equalities Committee into discrimination in the workplace relating to the menopause. They have not finished their report or made recommendations as yet but the result could be a change in legislation.
Given the scale of this issue it is imperative that employers handle this correctly. A clear lesson from the Merchant case is that medical evidence must be listened to as opposed to relying on assumptions and stereotypes.
Risk assessments and training are crucial. A menopause policy should also be considered, but we would recommend that it should only be implemented once the employer is confident that managers are appropriately trained to follow it and deal with sensitive situations in the appropriate way.
The Chartered Institute of Personnel and Development (CIPD) has provided a guide to managing menopause at work. It emphasises that a manager’s role is to ensure that employees suffering menopausal symptoms get the same support and understanding as if they had any other health issue. There are practical examples of reasonable adjustments that can be made for common menopausal symptoms such as access to fans and cold water for those experiencing hot flushes, or the ability to start later or work from home if employees are experiencing disturbed sleep.
Further information and advice on this topic will be provided in a training session on Age Inclusivity run by Navigator. More details on this session including dates and times will be announced in due course.
If you have any questions on any of the issues mentioned in the above article, please contact Natalia Milne.