Menopause | Legal Protections at Work

A recent survey of 3,800 women in the UK, carried out on behalf of menopause expert Dr Louise Newson, who runs the not-for-profit Newson Health Research and Education, found that a lack of support in the workplace for women means they have to take time off or leave their jobs due to menopause. This article looks at what employers can do to encourage open discussion in the workplace about the menopause and avoid unfair treatment of those experiencing menopausal symptoms.

What is the menopause?

The menopause is a natural stage of life and refers to the time when a woman stops having periods and can no longer get pregnant naturally. The average age of menopause for women in the UK is 51 and usually happens between 45 and 55 years of age, but there is a lot of variation, and it can also happen earlier or later in someone's life. There are 3 different stages to the menopause:

• perimenopause
• menopause
• postmenopause

All stages and types of the menopause are different, and symptoms can vary from person to person, and range from very mild to severe. For many people symptoms last about 4 years, but in some cases symptoms can last a lot longer.

How can the menopause impact work?

Symptoms can be difficult to manage and can have a detrimental impact at work leading to performance issues or attendance problems. This can lead to capability and conduct proceedings and sometimes dismissal. The Menopause Charity reported that 10% of women who are in work whilst experiencing the menopause leave their jobs because of the menopause. Women who are going through the menopause and feel they have been subjected to unfair treatment at work relating to the menopause have a number of options to bring a discrimination claim relying on one of the existing protected characteristics in the Equality Act 2010; disability, sex or age.

Legal protections for employees experiencing the menopause

Presently, discrimination claims relating to the menopause must fit within the parameters of current legal protections but there is no targeted legislation specifically related to menopause. Many menopause charities have called for specific legal protections similar to those awarded to pregnancy and maternity in the workplace. In July, 2021 the Women and Equalities Committee launched a new inquiry aimed at reviewing the existing legislation and business practises regarding menopause in the workplace. The review will examine whether the current legislation goes far enough to protect women going through the menopause and whether menopause should be added to the Equality Act 2010 as a protected characteristic. 

Employer obligations

In the first quarter of 2021 there were 4.5m women aged between 50-64 years old in work in the UK. Women make up a substantial proportion of the workforce, and therefore employers should be aware of their legal obligations within the workplace concerning discrimination, health and safety and working conditions of women who are affected by the menopause. If attendance, performance or conduct issues are not managed correctly and appropriately concerning women who are suffering from menopausal symptoms the employer could leave themselves open to claims of discrimination on the grounds of disability, sex or age. In addition, if the employer dismisses an employee without considering what steps they could take to provide appropriate support, the employer may also be subject to claims of unfair dismissal under the Employment Rights Act 1996. Employers should also be aware of potential claims of harassment on grounds of age, sex and disability resulting from unwanted jokes, comments and ridicule in the workplace relating to the menopause.

Approaching medical issues in the workplace fairly

The Employment Tribunal case of Merchant v British Telecommunications plc illustrates that employers must be careful to approach medical issues arising out of the menopause in the same way that other illnesses are treated. Failure to do so may result in an Employment Tribunal finding the employer has acted unlawfully. In Merchant v British Telecommunications plc Merchant was dismissed from her job as learning and development trainer and claimed her dismissal on the ground of capability was an act of direct sex discrimination and unfair dismissal as the reason for her deterioration in performance was related to health issues arising from the menopause. The tribunal concluded that the employer’s decision to dismiss Merchant was inconsistent with the response to other non-female specific health conditions and constituted direct sex discrimination and the claim of unfair dismissal was also upheld.

What can employers do to support women experiencing the menopause

• Consider introducing a menopause policy to encourage women to discuss any symptoms they are experiencing and to examine steps that could be taken to alleviate symptoms. The policy should recognise that symptoms and experiences of the menopause vary.
• Ensure policies around conduct, attendance and performance are followed in relation to factors arising as a result of menopausal symptoms.
• Ensure menopausal symptoms are not responded to in a way that is inconsistent with the way in which other non-female health conditions are responded to.
• Implement training for management to enable them to provide support to women experiencing menopause symptoms and ensure they have adequate knowledge about the menopause and processes for supporting employees.
• Ensure women experiencing menopausal symptoms have access to adequate facilities in the workplace such as suitable toilet facilities, temperature controls, drinking water and storage for sanitary products.
• Review workplace uniforms to ensure they accommodate changes which may make menopausal women more comfortable.
• Flexible working.
• Ensure staff are aware of the assistance available outside of the workplace such as menopause support groups and charities.