In February, the Equality and Human Rights Commission (EHRC) published new guidance on menopause in the workplace. The guidance consists of text and short videos and is certainly a resource worth having a look at; to access please click here.
The guidance is designed to help employers understand their legal obligations in relation to supporting workers experiencing menopausal symptoms. The resource explains what the menopause and perimenopause is, how menopausal symptoms can impact cisgender women (trans men and non-binary individuals) at work, it explains an employer’s legal obligation in clear and simple language and steps an employer can take to support people during this time. In parts, the guidance may seem like it’s stating the obvious, but we only have to look at recent cases to see that menopause remains a taboo subject, particularly in the workplace.
There’s approximately 3.7 million women who are aged between 45-54 in the workplace; and given that women over 50 are the fastest growing part of the workforce it is important for employers to consider the effects of the menopause on their staff and take appropriate action.
Research by the CIPD found that 67% of working women with experience of menopausal symptoms said their symptoms had a mostly negative impact on them at work. Notably research by the Fawcett Society found that 1 in 10 surveyed left work due to menopausal symptoms.
The new EHRC guidance explains employers’ legal obligations in simple terms. It states that if menopausal symptoms have a long term and substantial impact on a woman’s ability to carry out normal day-to-day activities, this could be considered a disability under the Equality Act. This in turn places a legal obligation on an employer to make reasonable adjustments; failing to do so may amount to discrimination (for failure to make reasonable adjustments), unless this can be objectively justified.
The EHRC guidance also reminds employers that they are under a legal obligation to not directly or indirectly discriminate against women because of a disability or to subject the woman to harassment and victimisation on the grounds of disability, age and/or sex (all of which are potential claims where menopause is an issue).
Over recent years we have seen a significant growth in Tribunals claims involving menopause and there is a trend that Tribunals are willing to accept that menopausal symptoms can amount to disability.
Discrimination claims are generally one of the most expensive claims that can be pursued in the Tribunal. Last year we saw the case of Maxine Lynskey v Direct Line (Judgment issued June 2023) where the Tribunal found the employer hadn’t fully considered the impact of the menopause on the Claimant and upheld her claims for failure to make reasonable adjustments and disability discrimination relating to her menopausal symptoms; awarding her just shy of £65,000 in compensation. This claim highlights that a failure to considerate impact of menopausal symptoms can be a costly mistake for employers.
More recently in the Tribunal claim of Marie Johnson v Bronzeshielfd Lifting Ltd (Judgment issued in February 2024) an employer was found to have constructively unfairly dismissed the Claimant and subjected her to direct disability discrimination when it failed to take into account the fact the employee was going through the menopause when determining her flexible working request. The manager stated that he did not know much about menopause; he did not ask the Claimant about it because he said he would not understand. The Tribunal was critical of the manager for not discussing the Claimant’s symptoms with her, the Judge noted that the manager did not need any scientific understanding but simply an understanding of how the menopause affected the Claimant in her day-to-day life and at work; which was easily within the manager’s comprehension. This case highlights the importance of normalising conversations, and training managers so they feel confident to have an open conversation with people about how their menopausal symptoms are affecting them. This was a liability only hearing as such remedy was not determined.
The menopause can cause a range of both physical and psychological symptoms, which will differ from person to person. The EHRC guidance sets out some examples of reasonable adjustments employers could take to assist people who are experiencing menopausal symptoms at work. Of course, symptoms will be different for different people and as such the adjustments will need to be tailored to the individual’s needs and taking into account the particular workplace. Examples of reasonable adjustments are:
- providing rest areas or quiet rooms;
- providing cooling systems or fans;
- relaxing uniform policies or allowing staff to wear cooler clothing;
- promoting flexibility such as allowing staff to work from home where possible;
- changing shift patterns or start and finish times;
- recording menopause related absences separately from other types of absence.
To support women, the guidance recommends having a culture where women feel able to speak about their symptoms and ask for adjustments. All staff should be included in discussions and training to promote an open and supportive culture. In particular it recommends training managers and creating opportunities for women to discuss their experiences and get support. One way of promoting this is to create safe spaces for women to get support from their peers, such as staff networks and providing regular reminders to staff of support available. A key recommendation is for employers to have a menopause policy, which is communicated to staff and reviewed regularly, which in turn provides guidance to managers and sets out what support is available for individuals experiencing the menopause.
Notably, the ECHR guidance isn’t the only resource available to employers, ACAS also have guidance for employers on managing the menopause at work; to access please click here.
Creating an open and inclusive workplace, normalising discussions about the menopause is therefore not only the right thing to do but could also minimise against the costly risk of getting it wrong.
Should you require assistance to implement any of the recommendation in ECHR’s guidance such as drafting a menopause policy or putting staff training in place or if you wish to discuss any particular concern please get in touch with a member of the employment team.
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This is only intended to be a summary and not specific legal advice. If you would like further information or advice, please do contact a member of our team.
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