Pause to consider the menopause during Menopause Awareness Month

The menopause affects most people who have a menstrual cycle which can include trans people and those with differences in sex development.

The symptoms of the menopause can by physical (e.g., hot flushes, migraines, skin irritation) but also psychological (e.g., lack of concentration, anxiety and depression). Typically, people will experience the menopause in their late 40’s/early 50’s with it lasting around 4 years, but it can start earlier or later and has been known to last a lot longer.

A considerable number of workers already suffer from perimenopausal (menopause transition) and menopausal symptoms and the number of individuals affected is expected to increase with people staying at work longer as the population ages. Employers are therefore becoming more alert to the issues surrounding the menopause.

In its annual ‘Health and Wellbeing at Work’ survey 2023, the CIPD found 24% of organisations questioned now have a standalone menopause policy, with a further 29% planning to introduce one.

In March 2023, the Government also appointed the first Menopause Employment Champion for England to improve workplace support and encourage career progression of those experiencing the menopause.

Although ‘menopause’ is not in itself a protected characteristic under the Equality Act, a position the Government confirmed in 2022 that it does not intend to change, the protected characteristics of age, disability, sex and gender reassignment may cover those who are experiencing the menopause and perimenopause.

Menopause legal cases

One of the earliest menopause related tribunal cases was Merchant v BT PLC (2012).

In this case, M’s claims for unfair dismissal and direct sex discrimination were upheld following her dismissal for poor performance in a situation where the dismissing officer ignored medical evidence on the impact of M’s menopausal symptoms, instead relying on his own knowledge of the menopause, referring to his wife’s experience.

The tribunal held that the manager ‘would never have adopted this bizarre and irrational approach with other non-female related conditions.’

Since 2012, the number of employment tribunal claims citing menopause has increased significantly. According to HM Courts & Tribunal Service there were 5 cases in 2017, rising to 23 cases in 2021 with 14 recorded in the first 6 months of 2023 alone.

A question that has arisen several times in recent years is whether menopause symptoms can amount to a disability under the Equality Act 2010. Whilst each case will be decided on its own facts, as always and there have been examples where that assertion has been unsuccessful.

The case of Lynskey v Direct Line Insurance Services Ltd (2022) clarifies that for some people the menopause symptoms can be severe and have a significant impact on their ability to work. In these cases, they could satisfy the definition of disability under the Equality Act.

L’s symptoms included effects on concentration and memory, low mood, anxiety, poor self-esteem and mood swings over a three-year period. L who had always been a good performer found her concentration and performance took a dip once she started to suffer from menopausal symptoms.

Initially her employer was supportive, but over time grew weary. The situation escalated with L being given a formal warning regarding her performance, being signed off sick and having her discretionary sick pay terminated.

Although L’s claims for constructive unfair dismissal, sex and age discrimination failed, it was held that L was treated unfavourably because of something arising in consequence of her disability and that the employer had failed to make reasonable adjustments.

Compensation awarded was just under £65,000.

Other examples of potential claims

• Claims for disability discrimination where an employee is disciplined on grounds of conduct where those actions are caused by symptoms of the menopause e.g., forgetfulness.
• Claims for discrimination on the grounds of gender reassignment, for example where an employer treats an individual with the protected characteristic of gender reassignment and who is experiencing the menopause symptoms less favourable than another woman experiencing menopause symptoms.
• Claims for health and safety breaches where the working conditions exacerbate a worker’s symptoms.
• Employers can also be vicariously liable for the discriminatory conduct of their employees and workers.

What should be encouraged at work

• Staff should be reassured of their ability to talk about and share issues on this topic, whether that is with their manager, HR or through an employee assistant programme.
• Health and safety assessments should be completed to ensure there is a suitable working environment to include good temperature regulation, rest areas, drinking water and washroom facilities.
• Flexible working requests or requests for reasonable adjustments should be considered carefully, e.g., altering working hours to allow additional breaks, considering different uniforms, considering moves to a cooler part of the office or the provision of fans.
• Involving all staff in awareness training to include noticing the signs, symptoms, and side-effects of the menopause. It is important all staff are involved in awareness training, particularly those who do not experience the menopause, so that they understand the position and how they can support those who are going through it.
• Sickness absence or performance issues should be carefully managed and the need for medical input considered.
• It should be remembered that information about health will amount to a special category data and will need to be processed in a particular way.

How can Morr & Co help?

If you have any questions or would like any further information on the content of this article, please do not hesitate to contact our Employment team on 01737 854500 or email info@morrlaw.com and a member of our expert team will get back to you.

Disclaimer
Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.