The Menopause – The Final Workplace Taboo?

Mishandling a menopausal worker could have serious implications for your business – Employers need to know the risks and the steps to take to avoid costly claims and disputes arising.

With a reported seven out of ten women in work in the UK being of menopausal age (the average age being 51), employers need to be aware of the potential discrimination claims that may arise in consequence of their treatment of women experiencing symptoms associated with the menopause.

An independent report in July 2021 found that almost one in four women are forced to take extended sick leave due to the menopause with those suffering having on average 32 weeks of absence before returning to work. In a press release issued on 25 November 2021, the Minister for Employment called on employers to strengthen their support of the careers of women who suffer from serious menopause symptoms. She urged them to use a national network of advisors called the “50 Plus Champions” to support and retain their workforce over the age of 50.

The current law

At present there is very little guidance for employers on how to handle a menopausal worker. The current case law from the employment tribunal is limited to just two non-binding tribunal cases. The first tribunal case found that the employer’s treatment of a poorly performing employee suffering from the menopause amounted to sex discrimination and unfair dismissal. The second case held that the conditions of transition to the menopause could amount to a disability under the Equality Act and in this case led to a finding of disability related discrimination and unfair dismissal.

Other possible claims

In addition to the above claims, employers also need to be aware of the following possible claims:

• Sex, disability and age-related harassment – This could arise if the worker was subjected to unwanted conduct which violated her dignity or created a intimidating, hostile, degrading, humiliating or offensive environment.
• Victimisation – This could arise if the worker complained about sex, age, disability discrimination and was then treated less favourably by her colleagues as a result of her complaints.
• Failing to make reasonable adjustments to the workplace to accommodate a worker’s disability due to her menopause – Adjustments might include offering flexible working hours to allow the worker to manage her insomnia; giving access to cold water and ventilation; and making allowances for memory loss and erratic behaviour.

What can employers do to better protect against these types of claims?

These types of claims are of course hugely time-consuming and expensive to defend at the employment tribunal. They are also very likely to result in reputational damage to the employer’s business, whether they win or lose the case! We are frequently instructed to represent employers at the employment tribunal on discrimination claims and they are some of the most complex and time-consuming claims to handle. We also find that employers have often made matters worse by failing to put in place the most obvious safeguards to mitigate the risks.

In the circumstances, we recommend that employers consider taking the following steps to mitigate the risks:

• Educating their workforce about the menopause which could be done through health and wellbeing training.
• Encouraging staff to discuss the menopause at team meetings and 1-2-1’s to remove the stigma;
• Offering managers the opportunity to attend diversity and equality training;
• Offering workers affected by the menopause a specific support group and helpline numbers;
• Improving the working environment by providing good ventilation; an ability to control office temperatures; and having well-managed toilet facilities near relevant workstations.
• Preparing a comprehensive Menopause Policy and training line-managers to apply it fairly and consistently.

For advice or further information on complying with discrimination or unfair dismissal laws or to obtain a FREE Menopause Policy, call Henry Doswell of Doswell Law Solicitors on 01233 722942. Alternatively, email Henry at henry@doswell-law.com

Disclaimer: Whilst every reasonable effort is made to make the information and commentary contained in this blog accurate and up to date, Henry Doswell takes no responsibility for its accuracy and correctness, or for any consequences of relying on it. The information and commentary in this blog does not constitute legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter.