The British Medical Association on 6 August 2020 commented that “Menopause needs more than a mention” referring to a recent survey which revealed a lack of support for doctors experiencing the menopause and resulting in some, stepping down from senior roles. The BMA calls for better support for women doctors, such as flexible working and simple adjustments in the workplace.
How many women are affected by the menopause in the workplace?
Until recently, the topic of the menopause, was not really discussed. Gender specific issues (save for pregnancy) are rarely discussed in the workplace.1 Instead, the subject of the menopause, has been regarded by some with sniggering disdain and demeaned as mere “women problems”2. Slowly people are waking up to the fact that the menopause is a real issue in the workplace which should be treated with the seriousness it deserves. It does and will affect a significant part of the workforce. Just looking at the working demographic, women now account for 15.61 million of the U.K. labour market3. The British Menopause Society4 say that 42% of women find their symptoms difficult to deal with and more than one third said the menopause impacted on their work life. These facts mean that employers do need to consider the issue of menopause and how it may be affecting its female employees.
How are women suffering with the symptoms of menopause actually protected in the workplace?
Present statutory protection lies with the Equality Act 2010; sex, age or disability (“protected characteristics”) discrimination and the Flexible Working Regulations 2014 with enforcement in the Employment Tribunal.
In summary, an employer can be liable, where a woman can show, she is subjected to less favourable treatment because she is suffering from the menopause (“sex discrimination”). In the case Merchant v BT plc5, a menopausal woman brought a successful complaint of sex discrimination. She had given her manager a doctor’s letter explaining the menopause was affecting her level of concentration at times. She was dismissed following a final warning for poor performance. The Tribunal held that the Claimant was subject to direct sex discrimination and unfair dismissal because the manager, once made aware of, failed to investigate any further, her menopausal symptoms. He should have sought further evidence but instead he relied upon his wife’s experience as relevant evidence for his employees.
Protection is also from harassment. This means a menopausal woman who is subject to conduct which violates her dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment can seek redress. On the facts of Newbould v the Commissioner of Police for the Metropolis, where the Claimant claimed harassment when she was told she was probably upset by being questioned because of her menopausal state, this was not successfully argued6.
Indirect sex discrimination can be claimed if a practice disadvantages women and disadvantages the woman making a claim.
Further, depending upon the context and factual circumstances, a woman may be able to establish her less favourable treatment was because of her age (the menopause) and claim age discrimination.
As regards disability, an employer is under a duty to make reasonable adjustments where a provision, criterion or practice places a disabled individual at a disadvantage in the workplace. This may cover working hours or shift patterns; provision of ventilation, fans, showers, modification of a uniform, moving an employee nearer a toilet or access to occupational health.
However, in order to obtain protection a woman suffering from the menopause has to establish that she suffers from a “disability”. A “disability” is defined by the Equality Act 2010 as a physical or mental impairment which has lasted or is likely to last for 12 months and substantially impairs normal day to day activities. Menopause in itself is not a deemed disability under the Act and whether the menopause amounts to a disability is an issue determined by the Employment Tribunal and will depend on the particular facts of a case. Professor Diana Kloss M.B.E.7 states that this must be the correct approach because of the diverse and varied effects of the menopause on different women.
Some women have already successfully argued that they are “disabled” within the meaning of section 6 of the Equality Act 2010 due to the menopause; see the Scottish Employment Tribunal decision of Davies v Scottish Courts and Tribunal Services8 (referred to below). However, a menopausal woman did not establish she was disabled in Rooney v Leicester City Council9. In that case the Judge found, on the facts, that the Claimant suffered from a mental impairment which was stress related and exacerbated by menopausal symptoms but there was no evidence that these impacted on normal day to day activities.
Importantly, the duty to make reasonable adjustments is not an absolute duty. Whether an adjustment is reasonable is a matter to be determined by the Employment Tribunal and a Tribunal is entitled to substitute its view of what is “reasonable” for that of the employer. The advantage of relying on a failure to make reasonable adjustment claim, (as opposed to indirect disability discrimination), is that the woman only needs to show that the practice puts her as an individual at a disadvantage and it is not necessary to show that other female workers would also be put at a disadvantage10.
Also, where a woman can show that she has been subject to discrimination arising from her disability of the menopause, for example where she is disciplined for performance in her job, and the drop in performance is because of her menopausal symptoms she can run a section 15 Equality Act 2010 claim. In Davies v Scottish Courts and Tribunals Service11 a woman suffering from transitional symptoms including physical and memory loss said that she had dissolved her medication in a water jug from which two members of the public drank, to their distress. She had a 20 year unblemished career but was accused of lying and was dismissed. She successfully argued she was dismissed because of something arising in consequence of her disability (section 15 of the Equality Act 2010). The employer had failed to consider that the Claimant’s conduct was affected by her disability. In fact, her cognitive problems were caused by her disability (namely the transitional symptoms of the menopause) and the employer conceded that she had a disability.
A menopausal woman can also seek adjustments in the way she works via a flexible working request. Such a request can be made by eligible employees12. Eligible employees are defined as those individuals employed for more than 26 weeks. The process entails a worker applying for flexible working in writing. Such a request can include a change in terms and conditions such as hours, time of work and home working. The government guidance gives examples of different kinds of flexible working. 13 An employer can reject an application and it is necessary the employer deals with it in “a reasonable manner” and notifies the employee of the decision within three months of the application or any permitted appeal unless any longer period is agreed14. Menopausal women may wish to rely upon the benefits of flexible working15 in their application. An employer can reject the request following discussion of the request with the employee; careful consideration of the request and informing the employee as soon as possible and in writing. In the context of COVID 19 where so many individuals have successfully worked at home, it may be easier for menopausal women to negotiate with their employers the benefits of a more flexible working arrangement. If a request is refused, an employee can make a complaint to an Employment Tribunal in certain circumstances potentially claiming sex discrimination or constructive unfair dismissal.
Is there another option to litigation?
Most people don’t want to litigate, they just want an understanding of the symptoms they are suffering and, to get on with their job. Often, a woman can't face lodging a grievance at work or to be perceived as causing a fuss, despite the fact that she might be struggling.
In the last few years there does appear to be a recognition by managers as to how the menopause is affecting women in the workplace. Ground breaking Scottish Employment Tribunal decisions (set out above) began the conversation. The publication in 2015 (revised and shortly to be updated) of the NICE guidance : Menopause : diagnosis and management raised awareness of all menopausal symptoms. In 2017, the Government reported “Menopause Transition : effects on women’s economic participation in the U.K.”16 For the first time, this report examined the extent of the problem the menopause transition has on women in the workplace. It found a significant number of working women experience problems at work as a result of individual symptoms but only a very small amount of evidence about actual workplace interventions to support women in transition or the effectiveness of these interventions. It emphasised the need for organisational cultures with shared norms and values in which women can discuss issues affecting their working lives with managers and colleagues. It recommended mandatory equality and diversity training covering gender and age and the menopause specifically and the need to treat the menopause as part of occupational health.
In 2019, ACAS published a useful guidance "Guidance for employers to help manage the impact of menopause at work"17. Susan Clews, ACAS Chief Executive said “Menopause will impact many working women who may feel too embarrassed to raise symptoms that are having a detrimental impact on their work…Our new advice can help employers make their workplaces inclusive and welcoming to all their staff with top tips around how to manage menopause effectively at work and keep within the law.” The guidance encourages employers to educate managers and create and implement a menopause policy.
In addition, UNISON have published guidance "The Menopause is a Workplace Issue" 18 aimed to improve workplace conditions for employees experiencing the menopause. UNISON commented that symptoms are often trivialised or treated as embarrassing by others and encourages employers to adopt a menopause policy.
These sources suggest the way forward is for greater understanding of the menopause in the workplace. Devising and implementing a menopause policy along with education and training given to managers can create an environment where, if a woman is suffering from menopausal symptoms, she can raise these with confidence they will be understood and empathised with and ultimately supported.
Rachel Wedderspoon is a specialist employment law barrister at the Chambers of 9 St. John Street, Manchester M3 4DN.
Footnotes
1, Faculty of Occupational Medicine, Guidance on menopause and the workplace
2, You may recall in May 2018 the Deputy Governor of the Bank of England used the word “menopausal” to describe the country’s sluggish economy. He later apologised.
3, Women and the Economy by Brigid Francis Devine Niamh Foley 4 March 2020
4, thebms.org.uk
5, ET/1401305/2011
6, Newbould v The Commissioner of Police for the Metropolis Case No. 2205178/2018
7, Professor Diana Kloss MBE is a leading authority on occupational health and is the author of the leading texts : Occupational Health Law, 6th Edition (2020) and Discrimination Law and Occupational Health Practice
8, ET 4104575/2017
9, ET 2600242/2019 & 2600243/2019
10, Pulman v Merthyr Tydfil College Limited UKEAT/0309/16; Chief Constable of Lincolnshire Police v Weaver UKEAT/0622/07. The disadvantage is that the Claimant must establish the employer had actual or constructive knowledge she was disabled which is not required under indirect discrimination.
11, Employment Tribunal ET/410575/2017
12, Sections 80F-80I of the ERA 1996 and in the Flexible Working Regulations 2014
13, www.gov.uk/flexible-working/types-of-flexible-working
14, Section 80G of the ERA 1996
15, www.cipd.co.uk/knowledge/fundamentals/relations/flexible-working/factsheet
16, www.gov.uk/government/publications/menopause-transition-effects-on-womens-economic-participation
17, www.acas.org.uk/guidance-for -employers-to-help-manage-the-impact-of-menopause-at-work
18, www.unison.org.uk/content/uploads/2019/10/25831.pdf