The menopause and the symptoms associated with it can still be a taboo subject for some and how to approach it can cause concern for employers and managers. However, menopause and how it can impact the workplace has gained interest in recent months, appearing in the news as well as Acas issuing menopause specific guidance last year.

We will outline some of the key pieces of information below and have a look at how it has been applied in the Tribunals.

What is the Menopause?

The menopause is when a woman stops having periods and is no longer able to get pregnant naturally. It usually occurs between the ages of 45 and 55 when oestrogen levels decline, with the average age in the UK being 51. However, 1 in 100 women experience the menopause before 40 years of age.

What are the Symptoms of the Menopause?

The symptoms of the menopause will vary greatly among women. Symptoms can be severe for some women and therefore it will commonly impact the woman’s everyday life, including at work.

Symptoms can last for around 4 years and include but are not limited to the following:

  • Hot flushes;
  • Difficulty sleeping;
  • Low mood and depression;
  • Headaches and migraines;
  • Anxiety, panic attacks; and
  • Problems with memory and concentration.

Problems sleeping and difficulties with memory and concentration can seriously affect a women at work.

This is something that is rarely spoken about  and women often feel too embarrassed to explain they may be having a hard time due to the effects of the menopause.

Acas produced its guidance last year to help employers manage the impact of the menopause at work and encourage conversations so women aren’t afraid to step forward and speak about their experiences and struggles.

Acas Guidance

In October 2019, Acas produced its menopause guidance. It states over 2 million women aged over 50 have difficulties at work due to menopause symptoms. This can lead to a loss of confidence and feelings of stress and anxiety surrounding the ability to do their jobs. Acas include the following tips on how to raise concerns and good practices for employers to help manage the menopause at work:

  • Create and implement a menopause policy (we can help with the drafting of this);
  • Provide awareness training for managers to deal with concerns in a sensitive way;
  • Create an open and trusted culture within the team;
  • Make changes where possible such as altering working hours, for example – allow someone to start later if they are struggling with sleep and allow extra breaks to help with concentration levels;
  • Implement low cost environmental changes such as providing a desk fan to help with hot flushes.

As with any physical or mental condition, knowledge and understanding is key. Whilst it may be a sensitive topic, don’t be afraid or embarrassed to ask for more information or go away and do some research but remember that every woman will experience different symptoms so employers should not assume all female employees will be suffering from the same symptoms.

The Law

An employer has a duty to protect the health and wellbeing of their workers and not to undermine the implied duty of trust of confidence. Claims that have the potential to be raised in relation to the menopause are:

  • Disability discrimination;
  • Sex discrimination;
  • Age discrimination;
  • Age related harassment;
  • Victimisation;
  • Failure to make reasonable adjustments.

In relation to disability discrimination and failure to make reasonable adjustments, it is important to note that the menopause in itself is not a deemed disability but its symptoms may be, depending on how long they have been affecting the woman; and how the symptoms impact on ability to carry out day to day activities.

Case Law

To date, there are only two main, non-binding cases in the UK on menopause and employment law. There may have been many more claims raised but settled before reaching the stage of a Tribunal hearing. As the menopause becomes less of a taboo subject, it is likely that we will see a rise in reported cases. The 2 reported cases are as follows:

Merchant v BT [2011]

Ms Merchant was dismissed from her role for poor performance. She had provided her employer with a letter from her GP to explain that she was going through the menopause and struggling with concentration. The employer breached the management policy in not carrying out any investigations into her symptoms before dismissing her. The Tribunal upheld claims of direct sex discrimination and unfair dismissal stating the manger would never have adopted “this bizarre and irrational approach with other non-female related conditions”. The Tribunal commented, “it is self-evident that all women will experience their menopause in different ways with differing symptoms and degrees of symptoms.” The manager at BT also wrongly decided that his wife’s experience was relevant as evidence for his employees!

This highlights the importance of investigation – both in terms of seeking medical advice and also investigating each individual’s circumstances and symptoms.

Davies v Scottish Courts and Tribunals Service [2017]

This is the first successful menopause related case to be won on grounds of disability discrimination. Ms Davies was suffering some awful symptoms of the menopause such as heavy bleeding, stress and memory loss amongst others. The symptoms were such that her condition met the definition of a disability under the Equality Act 2010. Ms Davies was taking medication to help with these symptoms and on one occasion could not recall if she had placed her tablets in a jug which two male colleagues then drank from (it turned out the tablets were not in the jug). She was accused of lying and bringing the court into disrepute and was subsequently dismissed. It was held that Ms Davies was unfairly dismissed “because of something arising in consequence of her disability”. Her employer managed the reasonable adjustments well but failed to protect her in its investigation and decision to dismiss as her “conduct was affected by her disability”.

Advice for Employers

As we mentioned above, it is becoming more common to  implement a menopause at work policy. In addition, employers could consider the following:

  • Training on health and wellbeing;
  • Expressly mention menopause in diversity and equality training sessions;
  • Signposting employees to workplace networks, online support groups or helpline numbers;
  • Accommodating menopause fairly in the sickness policy;
  • Making improvements to the working environment such as fans, temperature control, sanitary disposals etc.

How can we help?

If you would like any help on anything you’ve read in this article or with the drafting of a menopause policy, training assistance or anything else, please get in touch with us on adelle@am-employment-law.co.uk