Menopause // What are your legal rights?
In recent months, we have seen the topic of menopause being given the attention it deserves. As a result, employers are considering how best to support employees who are going through menopause and perimenopause.
This article outlines what the menopause is, the potential legal implications and what employers can do to support employees. It also outlines what steps employees can take if they consider they are being treated less favourably due to their symptoms.
We caught up with Employment Lawyer, Catherine Hawkes, of Royds Withy King, to find out more about the impact of menopause on the workplace.
What is the menopause?
· The menopause is a natural process when a woman’s oestrogen levels decline, she stops having periods and it marks the end of her reproductive life. All women will experience menopause at some point during their life. Menopause can also impact trans and non-binary people who may not identify as female.
· Most of those who experience menopause will do so between the ages of 45 and 55. However, some start experiencing symptoms much earlier. Often symptoms last between four to eight years, but they can continue for longer.
· Women can go through a wide range of physical and psychological symptoms associated with the menopause transition. Symptoms can be fluctuating and some of the most typical symptoms include: sleeplessness, night sweats, hot flushes, muscle and joint pains, mood disturbances, such as anxiety or depression, memory loss, poor concentration, headaches, loss of confidence and panic attacks.
· Menopause is preceded by “perimenopause” during which the body prepares itself for menopause. Perimenopause can also last for several years, and women may start to experience some of the symptoms mentioned above.
Menopause in the workplace and potential legal implications:
1. quality of working life & performance
The impact of menopause symptoms in the workplace can be significant and have a negative effect on women’s quality of working life and performance at work. They may gradually start to feel disengaged at work which can often lead to a desire to leave the workplace altogether. The result is that many women are leaving businesses when they are eligible for senior roles and therefore impacting on diversity levels within senior management.
2. stress
A survey conducted by the Chartered Institute of Personnel and Development (CIPD) found that three in five menopausal women were negatively affected by their symptoms at work: 65 per cent said they were less able to concentrate, 58 per cent experienced more stress and 52 per cent felt less patient with clients and colleagues.
3. discrimination
Menopause is not in itself a protected characteristic under the Equality Act 2010. However, employment tribunal case law demonstrates how an employer’s treatment of staff experiencing the menopause can potentially give rise to discrimination at work.
4. unfair dismissal
If an employee is treated less favourably or put at a disadvantage at work because of their menopause symptoms, they may have claims under the Equality Act 2010 related to sex, age and/or disability as well as a claim for unfair dismissal and constructive unfair dismissal, if they have more than 2 years’ service.
5. employment tribunal
There has been a significant rise in employment tribunal claims, with 10 cases citing the claimant’s menopause in 2019, increasing to 16 in 2020 and there have been several successful claims brought by women who have been unfairly treated at work due to issues connected with the menopause.
6. Disability?
In Davies v Scottish Courts and Tribunals Service, Ms Davies was disciplined and dismissed due to her forgetful and confused behaviour which were symptoms of her perimenopause. Ms Davies was dismissed and successfully claimed unfair dismissal and discrimination arising from disability. The employment tribunal held that her dismissal was because of conduct arising from perimenopause, which amounted to a disability under the Equality Act.
7. sex discrimination
In Merchant v BT Plc, Ms Merchant was dismissed following a final warning for poor performance. She had previously given her manager a letter from her doctor explaining that she was “going through the menopause which can affect her level of concentration at times”. In dismissing her, the manager chose not to carry out any further medical investigations of her symptoms. The tribunal upheld her claims of direct sex discrimination and unfair dismissal and held that the manager would never have adopted “this bizarre and irrational approach with other non-female-related conditions”.
8. age harassment
In A v Bonmarche Ltd Ms A had worked in retail for 37 years and was a high achiever. Her situation at work changed in around May 2017 when she began to go through the menopause. Ms A's male manager would demean her and humiliate her in front of other staff who were younger than Ms A and called Ms A "a dinosaur" in front of customers. He made numerous other comments about Ms A being menopausal and her performance. The manager also refused to adjust the temperature in the shop to take account of Ms A's requirements. She suffered a breakdown in November 2018 and her manager was extremely cold and threatening towards her when she returned to work leading to her resignation. The tribunal upheld her claims for sex and age harassment.
What can employers and employees do?
There are a number of steps which an employer can take to create a supportive environment which include: -
1.
Making working life more flexible for women suffering from symptoms, such as allowing flexible working, ensuring long hours are avoided, reducing workloads.
2.
Training line managers to help raise awareness about the menopause and equip managers with the confidence to speak with women who are experiencing symptoms.
3.
Implement a menopause policy to further raise awareness about the potential impact of menopause on staff.
4.
Consider the working environment generally and whether certain adjustments can be made, such as access to fans and good ventilation, cold drinking water and quiet workplaces.
5.
Adjusting absence policies to account for absences due to menopause symptoms (in a similar way to pregnancy-related absence or disability absences).
If you are an employee that considers you have been subjected to less favourable treatment as a result of your menopause symptoms, it is important to raise the issues informally in the first instance and then consider raising a grievance if the matter has not been resolved informally. Obtaining legal advice at an early stage, may be necessary to support you through the process.
To contact Catherine, please use her details below:
Catherine.Hawkes@roydswithyking.com | 0207 842 1511