By Natasha Smith, Senior Associate
Over the years, there have been a handful of successful cases brought by women who have been unfairly treated at work due to issues connected with the menopause. With the Women and Equalities Committee due to publish the results of its inquiry into the extent of discrimination faced by menopausal people in the workplace this year, it is expected that these cases will be on the rise and employers could therefore find themselves on the receiving end of a costly tribunal claim if they do not take positive steps to approach this issue in the workplace.
Menopausal women are reportedly the fastest growing demographic in the workforce and more women than ever will experience the menopause whilst working. A significant proportion of women (1 in 4) are leaving the workplace as a result of the menopause, at a time when they should be in the prime of their careers, thereby creating a significant loss of talent.
Women can go through a wide range of physical and psychological symptoms associated with the menopause which can last for several years; symptoms can be fluctuating and be felt to varying degrees by different women.
This can often make it difficult for employees and employers alike to recognise the cause of those symptoms, but if an employee is treated less favourably or put at a disadvantage at work because of their menopause symptoms, then they may have discrimination claims under the Equality Act 2010 related to sex, age, and/or disability (and, in some cases potentially gender reassignment), as well as a claim of unfair dismissal or constructive unfair dismissal.
A person is disabled for the purposes of the Equality Act 2010 if they have a physical or mental impairment, and the impairment has a substantial and long-term (longer than 12 months) adverse effect on their ability to carry out normal day-to-day activities. ‘Substantial’ means ‘more than minor or trivial’
Other health and safety related legislation may also be relevant, including the general duty on employers to protect the health, safety and welfare of employees and the requirement to undertake risk assessments and prevent employees being exposed to risks.
In Merchant v BT plc (2012), a poorly performing female employee who had indicated that menopause symptoms were adversely impacting her capability brought a successful claim for direct sex discrimination and unfair dismissal. It was found that the employer had failed to take the menopause seriously as an underlying health condition and failed to follow the normally expected procedure.
In Davies v Scottish Courts and Tribunal Service (2017), the employer was found to have unfairly dismissed an employee by reason of menopausal symptoms which the Tribunal found to amount to a disability. While this case is not a proposition that all women going through the menopause will be classed as disabled, in cases of extreme symptoms it may and therefore requires an employer to consider making reasonable adjustments.
In Ms M Rooney v Leicestershire City Council (2021), the Employment Appeal Tribunal found that an employment tribunal had wrongly decided Ms Rooney was not disabled when she suffered severe menopausal symptoms. Ms Rooney had told the Tribunal she had suffered from the physical, mental and psychological effects of the menopause for two years and severe peri-menopausal symptoms, including insomnia (causing fatigue and tiredness), light-headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines and hot flushes. These symptoms had had a negative impact on her life to the extent that she had struggled physically and mentally to cope. The appeal tribunal found the original tribunal had been wrong to conclude that these symptoms did not have a substantial adverse effect on her ability to carry out normal day to day activities.
The chair of the Women and Equalities Committee (Caroline Nokes) has said that she would not rule out making changes to the Equality Act 2010 to protect menopausal women who are discriminated at work and Carolyn Harris MP has also indicated that there should be legislation that every workplace has a menopause policy, just like they have a maternity policy.
So, what can employers do?
It must be emphasised that a one size fits all approach won’t work and so individual discussions are needed to help identify how best to support each affected employee. With that in mind, some examples of what can be done to support menopausal employees include:
If you would like to discuss the potential legal implications for employers who do not proactively address menopause in the workplace or any other employment matter, please do not hesitate to contact Joseph Oates on email: firstname.lastname@example.org or Natasha Smith on email: email@example.com or tel: 01892 515022.
This blog is not intended as legal advice that can be relied upon and CooperBurnett LLP does not accept any responsibility for the accuracy of its contents.