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Menopause in the Workplace

This briefing looks at the legal and practical issues arising in connection with women in the workplace going through the menopause. Although there has been an increase in discussions about the menopause in the media, there is still a stigma attached to it. We look at what employers should be considering in terms providing support, such as training managers and implementing a specific menopause policy as well as the potential legal risks if issues are ignored or badly handled.

Menopause in the workplace statistics

Women over the age of 50 have been the fastest growing group in the workforce for a number of years, meaning that more are working through the menopause (and perimenopause), which, for many, will bring challenges. Symptoms will vary and can be both physical and psychological, ranging from hot flushes and headaches to increased anxiety and depression. Employers should be aware that the average age for a woman to go through the menopause is 51 and most experience symptoms between the ages of 45 and 55. However, the menopause may also start earlier due to surgery, illness or naturally. In addition, symptoms may start years before the menopause, during the perimenopausal phase. According to the Faculty of Occupational Medicine, nearly 8 out of 10 menopausal women are in work, 3 out of 4 women experience serious symptoms and one in three of the workforce will soon be over 50.

An analysis of tribunal cases by Menopause Experts Group found that 23 cases cited the menopause in 2021 which is a 44% increase from 16 cases citing the menopause in 2020. In addition, reference to the word “menopause” increased by 75% in tribunal documentation.

Is a menopause policy mandatory?

On 24th January this year, the government confirmed that it would neither be consulting on making menopause a protected characteristic in its own right under the Equality Act 2010, nor mandating that employers have a specific menopause leave policy.

Despite the headline grabbing refusals, however, the government does intend to take forward some of the recommendations put forward by the Women and Equalities Committee report “Menopause and the Workplace” published in 2022. This, together with a huge increase in awareness in the media, is clearly a small but positive step forward.

Menopause employment champion

Amongst the ideas the government is taking up is the appointment of a “menopause employment champion” to spearhead work with employers on menopause workplace issues. Currently employers and employees are having to navigate and work within the existing legal framework with little guidance at this time.

What menopause claims are being made?

Although menopause is not now going to be given specific protection under the Equality Act, analysis of court records has shown that the number of cases in the employment tribunal citing menopause is increasing. The claims may be framed as sex, age or disability discrimination but have the menopause and its symptoms at their centre.

Sex discrimination

For example, in several cases women have made successful sex discrimination claims where they have suffered unreasonable treatment at work as a result of menopausal symptoms. In one instance the employee had a letter from her doctor explaining that she was going through the menopause and stating that this “can affect her level of concentration at times”. Despite this, her manager chose not to carry out any further medical investigations of her symptoms (in breach of the company’s performance policy) and dismissed her. In upholding her claim of sex discrimination, the tribunal found that the manager would not have adopted “this bizarre and irrational approach with other non-female-related conditions”.

Age discrimination and sexual harassment

Tactless remarks made by those unaware or unsympathetic to the situation could also amount to sexual harassment. In one tribunal case, the claimant’s manager would humiliate her and demean her in front of younger staff, who would laugh at the manager’s remarks. On one occasion he criticised her for failing to staple together two pieces of paper and related this to her being menopausal. She succeeded in claims of both age and sex harassment.

Disability discrimination

Depending on the symptoms, there may also be protection under the disability discrimination provisions. Several cases have shown that the significant impact some of the symptoms have on the individual’s day-to-day activities amounts to a disability. As such, employers need to ensure they consider what reasonable adjustments they can make to assist a woman experiencing such symptoms, and that managers are trained to understand and recognise these issues.

What can employers do to support those going through the menopause?

Creating a workplace where employees feel able to openly discuss such issues with their line managers or their HR team will be key to retaining women in the workplace and ensuring they are not driven out by these challenges.

Reports suggest that huge numbers of women have indeed already left the workforce at enormous cost to businesses.

There are numerous practical steps an employer can take, but awareness of the menopause and its symptoms is critical.

Menopause workplace policy

Developing a menopause policy, whilst not a legal requirement, will demonstrate a commitment to taking the issue seriously, address any underlying stigmas and highlight the support available.

Menopause training for managers

Managers need to be trained to be alert to potential symptoms when dealing with staff, particularly if looking at absence and performance issues. A recent survey by Acas found that a third of employers don’t feel well equipped to support women going through the menopause. Training should also be provided on how to deal with the issues sensitively, confidentially and fairly. Employers should consider what reasonable adjustments may help alleviate or manage the symptoms including:

  • room temperature control
  • cold drinking water
  • desk fans
  • working from home
  • staggering start times if symptoms are particularly bad.

Employers should also review other policies such as absence policies and performance policies to make sure they are fair to those experiencing menopausal symptoms.

With increased life expectancy and a need or desire to work longer, this issue is one that is only going to be more prevalent in the workplace in the coming years. Ultimately, retaining women in work creates a more positive and diverse workforce. Retaining staff with years of experience and knowledge is good for productivity, profitability and is a positive force for the broader UK economy.

Our expertise

We advise on all aspects of employment law including cases involving the menopause and advice on developing a menopause policy for your organisation. We use our exceptional breadth and depth of expertise to give clients personalised advice to help them manage risks and resolve issues.

Please contact Sara Wilson, Legal Director, in the first instance, if you would like to get in touch or your usual Charles Russell Speechlys contact.

 

The article was first published in Raconteur here.

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