Menopause affects a significant proportion of the UK workforce, and its symptoms can lead to performance and attendance issues.
We outline below the potential claims that may be brought if you fail to acknowledge an employee’s menopausal symptoms and some best practice advice on supporting employees experiencing menopause at work.
Impact Of Menopause At Work
Generally, menopause affects women aged between 45 to 55, which is a significant proportion of the UK workforce, particularly in industries that are female-dominated.
The hormonal changes women experience during menopause can cause a range of symptoms that often last for several years.
Although each woman’s experience will be different, common symptoms include:
- Hot flushes
- Difficulty sleeping
- Memory and concentration problems
- Changes in mood, including tiredness, irritability, depression and anxiety
- Urinary problems
Menopause-related symptoms can have a detrimental impact upon an employee’s work, particularly regarding performance and attendance.
Risk Of Potential Claims Related To Menopause
An employee experiencing menopause may have several potential claims if you fail to acknowledge their symptoms or offer appropriate support.
Sex/Age Discrimination
Although menopause alone is not a protected characteristic for bringing discrimination claims under the Equality Act, any discrimination surrounding menopause will be related to the employee’s sex and possibly age.
Therefore, an employee may be able to bring a claim of:
- Direct discrimination where she has been treated less favourably. For example: an employee experiencing health problems due to menopause is offered less support than a male employee who has another health condition.
- Indirect discrimination if a policy or practice of the business places her at a disadvantage. For example: employees must take breaks at allocated times, but employees experiencing menopause require more regular toilet breaks.
As menopause is a female condition, any unfavourable treatment is likely to amount to sex discrimination without the need for a male comparator.
An employee may also be able to bring a claim of age discrimination because the average age of women who experience menopause is 51.
However, the employee would need to refer to a comparator for age discrimination claims as menopause can naturally begin or be induced by medical treatment at a much younger age.
There is no defence available for employers who face direct discrimination claims.
However, you can justify indirect discrimination by demonstrating that the policy/practise was a proportionate means of achieving a legitimate aim.
To successfully argue this at a tribunal, you would need to show that you considered the needs of employees experiencing menopause and investigated ways to reduce the disadvantage for such individuals.
Harassment And Victimisation
If insensitive jokes and comments are made about an employee going through menopause, this may amount to harassment based on sex and age.
For example, a woman who was humiliated by her manager in front of colleagues and customers because she was experiencing menopause successfully brought claims of sex discrimination and harassment and was awarded over £27,000 in compensation.
If the employee reports such harassment and is subjected to detrimental treatment by either colleagues or her employer, she may also be able to claim victimisation.
Therefore, you must take these concerns seriously.
Disability Discrimination
In serious cases, menopausal symptoms may amount to a disability under the Equality Act 2010.
This will place you under a duty to make reasonable adjustments to the employee’s role to alleviate the effect of menopausal symptoms on her work.
If you fail to make reasonable adjustments or otherwise discriminate against the employee based on her menopause, she may be able to bring a claim for disability discrimination.
There is no length of service requirement to bring this type of claim, and there is also no limit on the amount of compensation that can be awarded.
Therefore, you should take a cautious approach if an employee discloses serious menopause-related symptoms.
Unfair Dismissal
Employees with over two years’ service who are dismissed due to menopause-related issues may be able to claim unfair dismissal, particularly if there has been no proper process.
For example, the employment tribunal upheld an employee’s unfair dismissal claim because her manager failed to consider her menopausal symptoms as part of the performance management procedure.
In this case, the employee was dismissed on the grounds of capability, despite providing a letter from her GP which explained that her symptoms included stress and poor concentration.
The manager admitted that he simply referred to his wife’s experience of menopause instead of following the company procedure by making proper enquiries into the health issues raised like he had done for other employees with health-related performance issues.
Dealing With Menopause Related Issues
To protect your business from the potential claims outlined above, you should deal with issues sensitively if you are aware that the employee is experiencing menopause.
However, you should never ask an employee whether they are experiencing menopause or assume that this is the case based on their age and symptoms.
Performance
An employee’s performance may be affected by menopausal symptoms, such as memory and concentration problems or fatigue.
In these circumstances, it would be best practice to explore whether any adjustments can be made to the employee’s role rather than proceeding straight to the performance management procedure.
If the employee’s menopause-related symptoms meet the definition of a disability, you are legally obliged to consider reasonable adjustments.
Adjustments could include:
- Allowing the employee to take more regular breaks
- Temporary flexible working
- Temporary changes to the employee’s workload
It may not be possible to resolve the employee’s performance issues through adjustments or such adjustments may not be reasonable for the business to make.
If this is the case and dismissal is the only option available to you, you should document your decision-making process to refer to in the event of a tribunal claim.
To defend an unfair dismissal or discrimination claim in these circumstances, you will need to show the tribunal that you took the employee’s menopausal symptoms into account, but no reasonable adjustments could be made to improve the employee’s performance to the required standards.
Absence
Symptoms of menopause may be so severe that they render the employee unfit to work.
The safest approach to dealing with menopause-related absence would be to treat it in the same way that you would any other disability.
For example, ignoring menopause-related absence for absence management purposes or allowing a higher trigger point for this type of absence management.
There is a risk of disability discrimination if the employee’s menopausal symptoms are a disability, and they are treated differently than other disabled employees.
Even if the employee is not disabled, they may be able to claim sex/age discrimination if you take disciplinary action against them for menopause-related absence if you cannot justify it as a proportionate means of achieving a legitimate aim.
Raising Awareness
It is in both the company’s and employees’ interests to create a transparent and supportive work environment where menopause can be discussed openly.
This will encourage employees to disclose to their manager any symptoms that may affect their work and enable adjustments to help them.
It will also place managers in a better position to deal with menopause-related issues fairly and tactfully, reducing the likelihood of tribunal claims.
Menopause Policy
A simple and effective way to raise menopause awareness would be to issue a dedicated policy.
This would send a strong message that the business is sympathetic towards employees experiencing menopause and point employees in the direction of support.
Alternatively, you could reference menopause in other relevant policies, such as flexible working, sickness absence and performance/disciplinary.
Training
It may be beneficial to offer training to line managers so that they understand the effects of the menopause at work and are aware of measures which can make employees feel more comfortable.
It is essential to eradicate any stereotypical attitudes that menopause is just a “women’s issue”.
You should also ensure that managers know the company’s relevant policies and procedures so that a consistent approach is applied across the business.
Practical Support
It would be best practice to implement measures to support employees experiencing menopause through a general risk assessment in the workplace.
Some practical measures which are easy to implement include:
- Monitoring workplace temperatures – e.g. offering fans or allowing employees to sit close to a door or window as high temperatures can exacerbate menopausal symptoms.
- Relaxed dress code – some materials or tight-fitting clothing may be uncomfortable for employees experiencing menopause.
- Covering unscheduled breaks – employees experiencing menopause may need more regular toilet breaks than their scheduled rest breaks allow.
Even if you have these general measures in place, you should still consider the individual needs of each employee and avoid adopting a blanket approach towards menopause.
