Menopause: is employment law finally catching up on this last taboo in the workplace?

It is a fact that seven out of ten women of menopausal age are in work in the UK.

The average age of menopause is 51 and the often challenging “transition” stage can start several years earlier. The increased rates of employment among women aged 50 and above mean that more working women than ever before will experience menopause transition during their working lives. Women experience difficulty looking for work or reducing their working hours during transition and a recent Government inquiry has found that some women consider their careers are affected or claim to have lost their jobs as a result.

Aside from the legal ramifications for employers, that is a total waste of talent in the workforce and of course, the gender pay gap will only close if mid-aged women remain in the workplace.

Legal protections

Currently, there is no “express” employment law protection for menopausal women in the workplace but that may change following the inquiry launched by the House of Commons Women and Equalities Committee into workplace issues surrounding the menopause (see below).

There is a legal duty for employers to protect the health and wellbeing of their workforce and not to behave in a way which may undermine the implied duty of trust and confidence. Acting in a way that fundamentally breaches the implied term of trust and confidence can lead to a claim for constructive unfair dismissal.

There is also the possibility of unlawful discrimination against menopausal women in the workplace through the protected characteristics of age, disability and sex. The case law on menopause transition in the UK has upheld both direct sex discrimination and disability-related discrimination.

In addition, other types of claims that could arise as a result of treatment of a woman in transition include:

  • Indirect sex and disability discrimination if, for example, a uniform policy is inconsistent with the need for cooling clothes or hiding sweat patches.
  • Sex, disability and age-related harassment if she is subjected to unwanted conduct which violates her dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for her.
  • Victimisation if she complains about sex, age or disability discrimination and is treated less favourably as a result.
  • Failure to make reasonable adjustments to the workplace (if her conditions amount to a disability). Steps that an employer might consider include flexible working, later starts to manage insomnia, access to cold water and ventilation and managing symptoms such as memory loss.

For an employer, all of the above claims can be hugely time-consuming, expensive to defend and damaging for the company’s reputation.

Potential reform

In July 2021, the House of Commons Women and Equalities Committee launched an inquiry into workplace issues surrounding the menopause. The inquiry included the following actions:

  • Examine existing discrimination legislation and workplace practices, to consider whether enough is being done to prevent women from leaving their jobs as a result of menopausal symptoms or suffering other adverse consequences.
  • Draw up recommendations with a view to shaping policies to address gender equality. These include the nature and the extent of discrimination faced by women experiencing the menopause and the impact on wider society, the economic impact of menopause discrimination and how businesses factor in the needs of employees affected, and how practices addressing workplace discrimination relating to menopause can be implemented.
  • Consider whether further legislation is required to enable employers to put in place a workplace menopause policy to protect people going through the menopause while at work.

The inquiry closed on 17 September 2021.

Employment Appeal Tribunal Judgment

In a recently decided case on 7th October 2021, the Employment Appeal Tribunal(EAT) has held that an employment tribunal erred in holding that an employee suffering from menopausal symptoms was not disabled under the Equality Act 2010. Despite setting out the employee’s comprehensive list of symptoms and the adverse effects on her day-to-day activities, the tribunal’s conclusion was that the effects were only minor or trivial. The EAT ordered that her claims for disability and sex discrimination, harassment and victimisation must be heard by a different tribunal.

This is only the second appellate case concerning menopause discrimination at work and is an important decision in directing employment tribunals to ensure that cases concerning the treatment of menopausal women in the workplace must be analysed properly and the evidence properly assessed. They must be treated seriously.

What can employers do?

It is likely that we will see increasing numbers of successful claims concerning menopause transition before employment tribunals and employers should take action now to educate managers and employees about the effects of menopause and how to avoid less favourable treatment in the workplace.

In the first place, all employers should review their staff handbooks and ensure that they have an up to date Menopause Policy in place. That policy should confirm:

  • the employer’s commitment to fostering an inclusive and supportive working environment for all of its staff;
  • recognise that many members of staff will experience the menopause and that for some the menopause will have an adverse impact on their working lives; and
  • confirm that the purpose of the policy is to raise awareness of the menopause and the impact of the menopause in the workplace, and to encourage open conversations between managers and staff.

If you would like to discuss any of the issues in this article or to receive advice and assistance to any employment law related issue please do not hesitate to contact Carmel Sunley of Sunley Workplace Solutions.