Insights

Nighat Sahi

Published 23 May 2022
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Menopause and the Workplace:

The case law

In November last year, I wrote a post about the menopause and the workplace. This is an area that continues to give rise to a number of concerns and it’s now more important than ever that employers should be aware of their responsibilities and be proactive in their approach. In this post, I take a quick look at recent case law in respect of the menopause and touch on some of the evidence received so far as part of the House of Commons Women and Equalities Committee inquiry into the menopause and the workplace.

The law and the menopause – a recap

You may recall that although the menopause is not a “protected characteristic” in its own right under the Equality Act 2010, there are various ways in which an employer may fail in the duty they owe to their employees in respect of someone who is suffering from the menopause. For example, employers have a duty to ensure everyone’s health, safety and welfare at work. The menopause is a health and wellbeing issue and therefore employers need to consider whether they have met their responsibilities in this regard.

Furthermore, if an employee or worker is put at a disadvantage and treated less favourably because of their menopause symptoms or related to a protected characteristic, this could potentially fall within one of the protected characteristic categories of age or disability and thereby amount to discrimination. There could also be issues around indirect discrimination in respect of banter and unwanted comments as has been demonstrated in one of the cases mentioned below.

Finally, if an employee is dismissed due to a lack of capability but the employer is found to have failed to have followed a reasonable approach and policy in respect of the employee’s menopause systems this could amount to unfair dismissal.

You can find fuller details of the legal position in respect of these issues in our previous blog:

Menopause and the Workplace

Case law

Although there has not been a great deal of case law as of yet dealing with the menopause, there have been a few decisions and we anticipate this will steadily increase in light of recent publicity and attention.

In Merchant v BT [2011], the applicant was dismissed for poor performance, despite providing her employer with a letter from her GP explaining that she was going through the menopause and struggling with concentration. The employer also failed to carry out any investigations into her symptoms before her dismissal. The tribunal upheld claims of direct sex discrimination and unfair dismissal.

A few years later in Davies v Scottish Courts and Tribunals Service [2017], the applicant had been suffering from what were described as some awful menopause symptoms including heavy bleeding, stress and memory loss. It was held that she was unfairly dismissed “because of something arising in consequence of her disability”.

In the case of A v Bonmarche Ltd (2019), the claimant was bullied by her manager as she went through the menopause. He called her a dinosaur and encouraged other staff to laugh at her. She had significant periods of sick leave but eventually resigned and suffered a breakdown due to the harassment. She was successful in her claim of age and sex discrimination.

More recently in Donnachie v Telent Technology Services Ltd (2020), the tribunal found that the applicant was disabled by reason of her menopause symptoms as they had a significant impact on her ability to undertake day-to-day activities.

Finally, last year in Rooney v Leicester City Council (2021), the applicant successfully appealed a tribunal decision that she was not suffering from a disability as a result of her menopause symptoms. The Employment Appeal Tribunal found that the tribunal had “erred in law in holding that [the applicant] was not a disabled person at the relevant time”, finding, “There is no explanation as to how the tribunal concluded that this evidence, which it did not reject, did not demonstrate an effect on day-to-day activities that was more than minor or trivial.”

The invisible cohort Inquiry

The House of Commons Women and Equalities Committee published their Fourth Special Report into the menopause and the workplace in February 2022.  The evidence they have collated so far makes for unsettling reading with “Most respondents reported that these symptoms affected them at work, reporting a loss of ability to concentrate, increased stress and a loss of confidence. 31% of respondents took time off work due to symptoms”.

In September 2021, the Royal College of Obstetricians and Gynaecologists, British Menopause Society and the Faculty of Sexual and Reproductive Healthcare produced a joint submission for the Women and Equalities Committee. Again, the key points made for unsettling reading with a survey of “1,000 adults in the UK, the BMS found that 45 percent of women felt that menopausal symptoms had a negative impact on their work and over 33 percent of women felt less self-confident in social situations.” Whilst anecdotal evidence received included women describing being mocked for hot flushes, being told to resign, and being made to feel worthless.

The joint submission called for:

  • Mandatory workplace policies to be introduced requiring employers to ensure that policies are in place to help employees who are experiencing menopause related symptoms and support them during their menopause transition.
  • Menopause policies should detail guidance and training for all staff, reasonable adjustments that can be made to the working environment, flexible working, and encourage a positive and open approach to menopause.

In our next post about the menopause and the workplace, we are going to take a closer look at the House of Commons Women and Equalities Committee research and the recommendations that have emerged from it so far. In the meantime, if you have any concerns about issues raised in this post, please do not hesitate to get in touch.   

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