Insights

Nighat Sahi

Published 10 November 2021
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Menopause and the Workplace

An Overview of the Law and Good Practice

The menopause is currently a hot topic, not least as a result of a number of high profile celebrity TV documentaries. On 23 July 2021, the UK House of Commons Women and Equalities Committee also opened an inquiry titled, “An invisible cohort: Why are workplaces failing women going through menopause?”. The inquiry cited the following research and its implications for the workplace,

A 2019 survey conducted by BUPA and the Chartered Institute for Personnel and Development (CIPD) found that three in five menopausal women- usually aged between 45 and 55- were negatively affected at work and that almost 900,000 women in the U.K. left their jobs over an undefined period of time because of menopausal symptoms. This could mean that women are leaving businesses “at the peak of their experience” which will “impact productivity”. Women in this age group are likely to be eligible for senior management roles, and so their exit can lessen diversity at executive levels. It can also contribute to the gender pay-gap and feed into a disparity in pensions.”

Despite the fact that this is an issue that has the ability to impact the workplace as much as the individual, many employers remain unclear about where they stand and what their responsibilities are, and many women continue to feel unsupported and isolated, often too embarrassed to raise the issue of their symptoms. 

Understanding the symptoms

Everyone’s symptoms of the menopause will be different (in type and severity) and they can last from a couple of years to a decade or more. What is more, some women start the menopause many years earlier than the stereotypical late 40s. Symptoms can be both physical and mental and often include:

  • Having increased mental health conditions such as stress, anxiety and depression
  • Memory loss, difficulties concentrating and brain fog
  • Fatigue, headaches and palpitations
  • Heavy, unpredictable periods, increased urinary tract infections and other physical issues
  • Losing confidence in their skills and abilities

Menopause sufferers often need time off work to deal with their symptoms but may not disclose the real reasons for their absence and many women describe having to work extremely hard to overcome what they or others perceive as their shortcomings due to their menopause.

For those experiencing symptoms, it can be a difficult and stressful time, and yet despite recent publicity, in many workplace settings, the menopause is still very much a taboo subject or something that is simply not discussed or properly acknowledged.

The Law and the Menopause 

Health and Safety

Employers have a duty of care to their employers when it comes to Health and Safety and where reasonably practical, must 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. Areas to consider include (but are not limited to):

  • Toilet access and breaks
  • Workplace temperatures and ventilation
  • Flexible hours of work and breaks
  • Reducing pressure caused by tight deadlines or excessive workloads

Direct Discrimination

It is against the law to discriminate against anyone because of their: age, gender reassignment, being married or in a civil partnership, being pregnant or on maternity leave, disability, race including colour, nationality, ethnic or national origin, religion or belief, sex and sexual orientation. These are called ‘protected characteristics’.

The menopause is not specifically a protected characteristic under the Equality Act 2010. But if an employee or worker is put at a disadvantage and treated less favourably because of their menopause symptoms, this could potentially fall within one of the following protected characteristic categories:

  • Age

This could include less favourable treatment because someone is going through the menopause, because this is usually related to the age of the person.

  • Disability

Someone is considered to have a disability if: they have a ‘physical or mental impairment’ and the impairment ‘has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities’.

If someone is disabled, their employer may need to consider making reasonable adjustments to reduce or remove any disadvantages they might experience because of their disability. For example, this might include moving their workstation to be nearer the toilets, improving facilities, changing the heating arrangements, or altering working hours (so long hours driving or visiting a place without toilets are avoided). 

  • Gender Reassignment and Sex Discrimination

Again, less favourable treatment because of either of these where the person is going through the menopause as a direct result of their gender reassignment or sex could potentially amount to discrimination.

Indirect Discrimination

Banter and unwanted comments about the menopause or menopause symptoms could count as harassment or sexual harassment and therefore amount to indirect discrimination.

Dismissal due to capability

There are five potentially fair reasons for dismissal and capability is one of them. However, for a dismissal for capability to be deemed fair by a tribunal, the employer needs to show that the dismissal was reasonable in the circumstances and was taken having followed a reasonable procedure. Therefore, the employer’s approach and policy in respect of the menopause may well fall for consideration in some circumstances.

Policy and Best Practice 

In October 2019, ACAS produced menopause guidance in which it recommends employers create and implement a menopause policy. In considering any menopause policy you should consider:

Culture and attitude. Any policy needs to set the tone and help create an open and trusting culture within an organisation. Many menopause symptoms can be difficult and embarrassing to discuss, so knowledge, understanding and sensitivity are key.

Risk assessments. As part of an employer’s overall duty of care for the health, safety, and wellbeing of their employees, a risk assessment that addresses the menopause can be extremely helpful.

Making changes. Even small changes may make a significant difference such as altering working hours, allowing extra breaks to help with concentration or moving desks to a cooler part of the office.

Training and raising awareness for employees, employers and managers. There is an increasingly diverse body of training available to employers which includes helping women understand and mitigate the symptoms of the menopause, educating the workplace at large as to the impact of the menopause and helping managers to identify menopause issues effectively but sensitively.

The menopause and its role in the workplace is an area where we anticipate there are likely to be a number of legal developments and changes in the near future. We’ll be posting further details in respect of the key points above over the course of the next few months.  But if you would like to discuss a menopause in the workplace issue, please get in touch.

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