Menopause and the workplace – considerations, risks, and how to manage them

Menopause affects 51% of the population. Despite this, a recent Parliamentary inquiry into menopause in the workplace found a systemic lack of awareness or understanding of menopause. For an employer, this lack of awareness or understanding, more often than not, results in a lack of support for menopausal staff, and in turn, increases the risks of losing talent or receiving claims in the Employment Tribunal.

Loss of staff

Women over the age of 50 are the fastest growing demographic in the workplace, often bringing a wealth of experience and skills. However, the ‘Menopause and the Workplace’ report by The Fawcett Society and Channel 4 recently found that 10% of women aged 45-55 had left their jobs because of menopause symptoms. This is equivalent to approximately 333,000 women across the UK. The poll also found that 14% of women in this age group had reduced their working hours, and 8% had not applied for a promotion because of menopause symptoms.

In addition, as businesses encourage staff back to the physical workplace post-pandemic, for those going through the menopause and experiencing its symptoms, that prospect may be very daunting.

For these reasons, employers should consider how they can provide support which enables menopausal women to continue to work in successful and fulfilling roles, not only to contribute to their employers’ success, but also to continue to build secure financial futures equivalent to their male counterparts.

Potential claims

Discrimination

The menopause is not currently a specific protected characteristic under the Equality Act 2010, although this is something the House of Commons Women and Equalities Committee has recently discussed during its inquiry into menopause and the workplace.

Nevertheless, if an employee or worker is treated less favourably because of their menopause symptoms, this could still amount to discrimination if related to a protected characteristic, such as age, sex or disability. Recent research conducted by Menopause Experts Group showed that in 2021, Employment Tribunal claims related to menopause increased by 44% compared to 2020, a trend that is expected to continue.

Some examples and recent case law relating to menopause are provided below.

a) Direct discrimination

In A v Bonmarche Ltd [2019], a tribunal found direct age discrimination where a manager ridiculed a woman experiencing menopause symptoms by calling her a ‘dinosaur’. In Merchant v BT [2012], a tribunal found direct sex discrimination where the employer did not consider whether menopausal symptoms were the reason for an employee’s poor performance and dismissed her, when a condition that affected both sexes (or a man suffering similar symptoms) would not have been ignored in the same way.

b) Indirect discrimination

A blanket clear desk policy could be said to indirectly discriminate against those going through menopause who need a fan on their desk to alleviate symptoms. Similarly, a strict uniform policy could amount to indirect discrimination because the symptoms of menopause may make certain uniforms uncomfortable. Given that menopause primarily affects women in a certain age bracket, such policies could lead to claims connected to sex or age discrimination. In addition, menopause may amount to a disability if the individual’s symptoms have a substantial and long-term (at least 12 months) adverse effect on their ability to carry out day to day activities, meaning that discrimination claims could also be brought on this basis.

Constructive dismissal

If an employer acts in a way which is deemed to breach the duty of mutual trust and confidence, and the employee feels that they have no choice but to resign, an employee with at least two years’ service may bring a claim for constructive (unfair) dismissal.

Health and Safety

Employers also have statutory obligations under the Health and Safety at Work Act 1974 to ensure the “health, safety and welfare at work” of all employees, as well as under the Workplace (Health, Safety and Welfare) Regulations 1992, to make workplaces suitable for those who work in them.

These duties place an onus on employers to consider the specific needs of menopausal workers and ensure the working environment will not exacerbate their symptoms, for example, by providing a controlled temperature, good ventilation, appropriate toilet facilities and access to cold drinking water.

Risk management

There are various measures employers can implement to mitigate against the potential claims described above.

Firstly, employers should carry out risk assessments to consider the specific needs of menopausal workers in their particular role and work surroundings, and what actions could be taken to ensure the symptoms of those going through menopause are not worsened by the work environment.

Employers should also consider adopting a standalone menopause policy. A recent YouGov poll found that around three quarters of employers do not have a menopause policy. Of those employers, around 44% said they had simply not considered it at all, 15% said they did not consider it a priority, and 7% said that sensitivities or embarrassment around the subject were holding them back. Regardless of the reason, this data indicates that the majority of workplaces lack structured support for menopausal staff.

A menopause policy can be a tool for employers to educate their workforce, encourage open conversations and assist in the approach to those conversations, outline adjustments in place for those experiencing menopause or how such adjustments can be requested, and signpost available support.

Employers should also consider how to actively ingrain the policy into the organisation to ensure that the support it aims to provide actually reaches those that need it. For example, employers could consider providing their workforce with training about symptoms, signs and side-effects of the menopause.

Comment

In order to retain talent and reduce the risk of claims, employers must educate themselves and their workforce on menopause, how it impacts their staff, and consider what it can do to provide support. A menopause policy is a sensible starting point in normalising conversations around menopause and outlining the available support.