According to the latest UK data, there were five employment tribunals referencing the claimant’s menopause in 2018, six in 2019 and 16 in 2020. There have now been 10 in the first six months of 2021 alone. Women aged 50 to 64 are the fastest-growing economically active group in the UK, and many of them are both at the pinnacle of their careers, and tackling a life-stage that can be unpredictable, uncomfortable, and occasionally debilitating. A 2019 BUPA and Chartered Institute for Personnel and Development survey found that three in five menopausal women felt they had been negatively affected at work.
A recent Guardian article told an extreme but unfortunately not uncommon story of the physical and emotional struggles many women face, and of the flawed, unsympathetic, and legally risky ways that some employers handle the difficulties of an employee whose performance and health may seem to have suddenly and drastically declined without explanation.
Disability, sex or age discrimination?
Menopause at work is challenging both for those undergoing it and those dealing with it from an HR and legal perspective, because it sits at the intersection of disability and sex and age discrimination – in a similar way to pregnancy, which is specifically protected because it does not always fit neatly into other legal categories. For women that intersection can mean a reluctance to talk about symptoms because menopause is often seen as a niche “women’s issue” or the subject of jokes about mood swings, or because they fear being seen as “past-it”. For employers and their advisers, that can mean a real confusion over whether, for example, there is the same duty to make reasonable adjustments to accommodate menopausal changes in capability as there would be for an employee with diabetes or deafness.
As a broad brush statement, I would recommend that considering menopausal symptoms or changes as “disabilities” is a sensible starting point for an employer seeking to support staff and protect their business. An employee’s personal symptoms are likely to meet the legal disability test of being an impairment lasting or being expected to last at least a year and (if there is an impact on work) of having a substantial adverse impact on day to day activities; although it will be important to bear in mind that among women who are significantly impacted by menopause (certainly not all), symptoms and effects are very varied.
Legal disability protections allow an employee to seek “reasonable adjustments” to continue to perform their role, while (in very broad terms) sex and age discrimination as legal issues tend to become relevant once there is a negative event, decision, or policy in the workplace that leads to unfairness or harassment – for example restricted bathroom access that affects women with heavy bleeding, or offensive comments.
Cultural and policy changes may well be needed however to create a workplace where women feel they can be upfront about what is happening and what they need from their employer; there is often shame and stigma around menopause. Without this openness, workplace problems are likely to fester until they reach the point of no-return and become resignations and court or tribunal claims. Many of our clients are now including menopause policies in their employee handbooks as part of mitigating these risks.
Menopause and the workplace inquiry
Given these clear and growing challenges, the House of Commons Women and Equalities Committee has launched an inquiry into work and the menopause. It is in fact starkly titled “Why are workplaces failing women going through menopause?”. The inquiry will look into the existing legal framework and the reality across workplaces, consider whether changes are needed, and draw up recommendations. The chair has already stated that recommending changes to the Equality Act 2010 – the main piece of legislation governing discrimination and equalities in the UK – is an option. Consultation is open for members of the public with relevant views or experiences to give evidence online.
To speak to me about a workplace issue, or specifically about updating your policies, contact Allison Crabtree.