This Wednesday, 18 October, marks World Menopause Day, with the month of October being designated Menopause Awareness Month. With statistics showing that women of menopausal age are the fastest growing group in the workforce, the issue of menopause in the workplace can be significant, not only for those experiencing the symptoms themselves, but also for their colleagues.
Menopause can be a tricky subject to raise, with younger and/or male employees being uncomfortable with discussing it, or afraid to be seen to be making assumptions about their older female colleagues. Yet, surveys suggest that one in ten women who worked during the menopause have had to leave their job due to their symptoms, and 44% of menopausal women in employment say their ability to work has been affected; evidence, if it were needed, that employers and employees need to be more open in discussing issues relating to the menopause.
In its 2022 policy paper on menopause in the workplace, the government’s UK Menopause Taskforce resisted calls for it to be added to the list of protected characteristics under the Equality Act 2010, on the basis that the ‘existing law provides sufficient protection’.
This means that women who have been treated less favourably in the workplace cannot bring a claim for discrimination directly on the grounds of menopause. What we are increasingly seeing, however, is menopause-related claims being brought on the basis of other protected characteristics, such as disability, age and/or sex.
Last month, Maxine Lynskey, a telesales consultant for Direct Line, was awarded just over £64,500 after she experienced less favourable treatment, including a disciplinary warning and a failure to be awarded a pay rise, for performance reasons, despite the fact her employer was aware that she was experiencing menopausal symptoms. Direct Line accepted that Mrs Lynskey’s symptoms, which included low mood, anxiety, mood swings, low self-esteem, and lapses in memory and concentration, had a sufficient impact on her ability to carry out day-to-day activities as to amount to a disability for the purposes of the act, although the company denied she had been discriminated against.
This case can be contrasted with that of Rooney v Leicester City Council, which has just been heard by the Leicester employment tribunal, and which is backed by the EHRC (Equality and Human Rights Commission). Last year, the Employment Appeal Tribunal (EAT) ruled that Ms Rooney’s menopausal symptoms were capable of amounting to a disability, overturning the employment tribunal’s decision that the effects of her symptoms (dizziness, incontinence, joint pain, fatigue, poor concentration and anxiety) were only trivial. The EAT returned the case to the employment tribunal to consider Ms Rooney’s claims for discrimination, harassment and victimisation.
Menopause is of course difficult to categorise, with women experiencing a wide variety of symptoms, from very mild to extremely serious effects. For this reason, menopause will not always amount to a disability, and medical evidence will be required in order to get a claim off the ground for disability discrimination based on menopausal symptoms. Employers should, however, be aware of the possibility of a woman’s symptoms – whether individually or collectively – having a sufficiently serious adverse effect on her ability to carry out day-to-day activities, as to amount to a disability for the purposes of the act. This may trigger an employer’s duty to make reasonable adjustments.
Addressing these issues is undoubtedly beneficial, not only for the huge numbers of women in the workplace experiencing symptoms of menopause, but also for employers, with the potential impact on employee wellbeing, retention and productivity, as well as, of course, minimising the risk of claims. Positive steps that an employer can adopt include:
Perhaps most importantly, employers should encourage women to discuss their experiences of menopause, ensure that managers are aware of the symptoms and are trained in handling conversations about the menopause, and not make assumptions about what a woman may be experiencing.
For further information about how this issue might affect your organisation, please contact our employment team.