A Useful Legal Perspective on Menopause at Work - Stella
Menopause at work

A useful legal perspective on menopause and work

byAmanda Steadman

Menopause is challenging at the best of times, but symptoms can worsen when you are dealing with menopause and work with the pressures from office environments, back-to-back meetings, commuting and much more. Amanda Steadman, Knowledge Lawyer at specialist employment law firm, BDBF LLP, gives the lowdown in our ultimate guide to menopause employment law.

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Have you seen a change in how companies treat menopause and work?

Menopause is still a taboo subject in many workplaces. A recent Opinium survey about menopause and work (commissioned by Vodafone) found:

  • Of over 5,000 working women surveyed who had gone through the menopause, 62% found that their symptoms adversely affected their work
  • 50% felt there was a stigma attached to talking about menopause at work
  • 43% felt too embarrassed to ask for support from their employers (and this figure was higher for those aged under 45)
  • More damningly, 33% felt they had no option but to hide what was happening to them

Things are beginning to change slowly when it comes to menopause and work, with some larger employers leading the way in menopause workplace policy:

  • Vodafone recently announced a global commitment to supporting menopause in the workplace and the launch of an awareness training programme
  • Advertising and PR firm Ogilvy improved its menopause support by offering private medical assessments through a partnership with Bupa
  • In 2019, Channel 4 introduced a menopause policy, menopause briefings for managers and also put in a place  a menopause champion 

In the last General Election, the Labour Party manifesto contained a commitment to require employers with 250 or more employees to introduce menopause policies. This indicates that the issue is starting to gain traction, and, in due course, we may see legislation in this area.

It’s positive to see some employers putting menopause workplace policy in place and delivering training to line managers on how to support affected staff but this appears to be the exception. It seems to us that very few employers are proactively broaching the topic of menopause and work.

If my symptoms are bad at work, who should I talk to?

If your organisation has a menopause workplace policy, then it’s worth having a look at it because it may name a “menopause champion” within your workplace. This person will usually be someone with expertise with whom affected employees can talk and seek advice.

If you don’t have a menopause champion in your workplace (and many don’t), then the best thing to do is have a private discussion with your line manager.  This is helpful for a number of reasons:

  • It gives your line manager notice that you are experiencing menopausal symptoms and how it is affecting your wellbeing and work. This should be considered by your employer in relation to managing issues like sickness absence or dips in your performance
  • They should be able to authorise any changes or adjustments you need to your working arrangements
  • They should be able to signpost other forms of support available to you such as private medical or counselling services

If you don’t feel comfortable speaking to your line manager, consider approaching either a member of Human Resources, another manager you feel able to talk to, or seek support from available employee assistance programmes.

It is also a good idea to keep a diary of your symptoms and how they are affecting you daily, should you ever need to refer to it.

Visit our symptoms library to find out more.

What about menopause and time off work?

Menopause and time off work is an important issue. Research by the CIPD in 2019 showed that 30% of working women aged between 45 and 55 felt unable to go to work at some point because of their symptoms.  Worse, three-quarters of women who took sickness absence felt unable to tell their line manager the true reason for their absence, due to the taboo around the menopause.

If your menopausal symptoms make you feel too unwell to work and you need time off, take sickness absence in the normal way. It’s important to be honest about the reason for your absence:

  • Then there is no suggestion that you have dishonestly taken sickness absence or misled your employer in any way
  • It may assist you at a later stage if you can show a pattern of menopause-related ill-health (e.g. in order to establish that you were disabled for the purposes of the Equality Act 2010 or to explain any underperformance in response to a performance management process)

In terms of pay, provided you meet certain qualifying conditions, you will be entitled to be paid Statutory Sick Pay (SSP) at the rate of £96.35 per week (as of 4 April 2021). Your employer may also offer enhanced sick pay, meaning you may have a contractual entitlement to additional pay on top of SSP. This varies from company to company, sometimes pay is enhanced to full pay and sometimes to a percentage of pay. You should check your employer’s Sickness Policy to see what your entitlements are.

If your menopausal symptoms are severe enough to qualify as a disability, you are protected from disability discrimination and your employer may need to make reasonable adjustments for you. Usually, this means that they should treat disability-related sickness absence in a different way to normal sickness absence when it comes to taking disciplinary action in relation to high levels of absence. Such absence should only be taken into account if the employer is satisfied that all reasonable adjustments have been made.

If you are absent from work on a long-term basis, your employer would need to take certain steps before it could move to dismiss you fairly. This includes obtaining medical advice, keeping in regular contact with you and warning you of the possible consequences of continued sickness absence.

If you are disabled, your employer may need to make other types of reasonable adjustments for you before dismissal. This may include keeping your job open for a longer period of time than it usually would and taking steps to support your rehabilitation. If you were dismissed because of disability-related absence then this would be discriminatory, unless it could be justified (i.e. the dismissal was necessary to meet a genuine business need and there was no less discriminatory alternative available).

Is menopause a disability?

Under the Equality Act 2010, a worker may be disabled when:

  • They suffer from a physical and/or mental impairment
  • That has an adverse effect on their ability to carry out normal day-to-day activities
  • The effect is substantial
  • The effect is long-term (i.e. it has lasted or is likely to last for at least 12 months)

It should not be assumed that all women going through the menopause will be protected; each case must be determined on its own facts. Helpfully, in the case of Donnachie v Telent Technology Services Ltd (2020), an employment tribunal decided that “typical” menopausal symptoms could amount to a disability, and that treatment for those symptoms (such as hormone replacement therapy) should be disregarded for the purposes of this assessment. In that case, the woman suffered from a range of symptoms including hot flushes, disturbed sleep, fatigue, memory and concentration problems and anxiety.

Importantly, where an employee is disabled, they are protected from discrimination and harassment related to the disability. In addition, the employer should proactively make “reasonable adjustments” to remove or reduce any substantial disadvantage suffered by that employee compared to others. For menopausal women, this could include things like ensuring the workplace is cool and well ventilated, adjusting start and finish times, allowing additional breaks and providing access to counselling services.

What can I reasonably expect my employer to do about menopause and work?

All employers, regardless of their size, have legal duties to take care of the health and safety of their employees, including menopause and work. This includes a duty to assess risks to health and safety in the workplace and take steps to eliminate or minimise those risks.  

Employers should take steps to ensure that menopause symptoms are not made worse by the workplace or working practices and, where necessary, make changes to help women manage their symptoms whilst working. This might include:

  • Keeping the workplace cool
  • Providing cold drinking water
  • Making a restroom easily available
  • Adjusting working hours
  • Providing more breaks

You may have additional protections if your menopausal symptoms amount to a disability (see above).

It’s reasonable to expect more from larger employers, particularly those who champion equality and position themselves as “employers of choice”. Acas recommends a number of best practice measures for employers to support menopausal employees:

  • Introducing a menopause policy: it can help raise awareness of the issue among the wider workforce by explaining what menopause is and the symptoms that women experience
  • Provide training for line managers: to raise awareness and understanding of menopause (and perimenopause and postmenopause), help them identify symptoms and handle sensitive conversations with affected employees
  • Manage sickness absence or dips in performance carefully: these should be handled with care, and support should be in place to minimise the impact of menopausal symptoms wherever possible
  • Consider appointing a workplace menopause champion: it gives affected employees someone with expertise to talk to (e.g. a member of HR)

Is there a difference between big and small employers in terms of what I can ask for?

All employers, regardless of their size, have legal duties to take reasonable care of the health and safety of their employees. The approach expected of employers will be proportionate to their size.

 All employers must conduct risk assessments but those with fewer than five employees are not required to put these in writing or have a health and safety policy. Where risks are identified, employers must take “reasonable” steps to stop those risks causing harm. What’s reasonable for a small employer with limited resources will be different to what’s reasonable for a global investment bank, for example.

Similarly, employers must make “reasonable” adjustments for disabled employees. Again, what’s reasonable will depend on the size of the employer and their resources.

It’s worth remembering that in the case of menopausal women, many of the steps or adjustments that will help avoid harm or disadvantage are not particularly costly or difficult to put in place. Although, steps like installing air-conditioning systems or providing access to private counselling services may not be reasonable for smaller and less well-resourced employers.

Can I do anything if I’ve been demoted or negatively treated due to menopause?

When it comes to menopause and employment law, depending on the circumstances, such treatment could amount to a breach of your employment contract and may also be discriminatory on the grounds of sex, age and/or disability. A good first step in this situation is to seek expert legal advice on your specific situation.

What you do next will often depend on your desired outcome. If you want to stay within the organisation, it is normally a good idea to seek to resolve your concerns informally at work.  Speak to your line manager, or a member of HR, to find out more about what’s happened and why. Try to find a route to resolving matters if you can.

In some cases, when it comes to menopause and employment law, however, a more formal approach may be needed. You could submit a “data subject access request” to your employer to obtain your personal data. The information provided to you may help you understand what’s happened more clearly. You may wish to raise a formal grievance under your employer’s grievance procedure. 

In cases of very poor treatment, you may choose to resign in response to the employer’s breach of contract and bring a claim for constructive dismissal (together with any other relevant claims) in the employment tribunal. You could also remain in employment and bring a claim for discrimination, including for any loss of salary due to a demotion or loss of promotion.

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Are there proven cases of discrimination when it comes to menopause and work?

Yes, there have been several cases where findings of sex, age and disability discrimination have been made in relation to poor treatment of women when it comes to menopause and work.

Sex discrimination – Merchant vs BT Plc (2011)

Ms. Merchant had been subject to underperformance procedures for a few years, culminating in a final warning. The performance issues persisted so a further performance process was commenced.  During this time, she was suffering from menopausal symptoms including lapses in memory, difficulty concentrating, heavy periods, anaemia and kidney problems.

During a meeting to discuss the performance issues, Ms. Merchant provided her manager with a letter from her doctor explaining that she was going through menopause and that this was affecting her ability to concentrate. She also referred to her menopause on several occasions during the meeting. Her manager did not carry out any further investigation of her medical condition (which was in breach of BT’s own performance management policy). Instead, he made a judgement on her health and her ability to carry out her role by comparing it to what he knew of the menopause experiences of his wife and a female colleague. Ms. Merchant was dismissed on performance grounds.

The employment tribunal held that it was “self-evident that all women will experience their menopause in different ways” and the manager would not have adopted this “bizarre and irrational approach with other non-female-related conditions.” A man with ill-health experiencing similar under-performance concerns would not have been treated in the same way and, consequently, the failure to refer Ms. Merchant for medical investigation before making the decision to dismiss was discriminatory on the grounds of sex. It was also decided that the dismissal was unfair.

Age and sex discrimination and harassment – A v Bonmarché Limited (in administration) (2019)

The claimant ‘A’ worked in a retail store and had made her manager aware that she was suffering from menopausal symptoms. Although she had previously got on well with her manager, this changed dramatically around the time that she began to go through menopause.

Her manager called her a “dinosaur” in front of customers when she tried to use an iPad to make a sale. When she struggled with a task, he said it was because she was menopausal. He made fun of her in front of other members of staff, who laughed at her. He refused to adjust the temperature of the store to help with her hot flushes. After the claimant suffered a panic attack, he refused to allow her to return to work on a phased basis.  

The claimant said this treatment made her lose all confidence and led to a mental breakdown. An employment tribunal decided that she had suffered discrimination and harassment on grounds of age and sex. She was awarded total compensation of £27,975, which included a sum of £18,000 for injury to feelings.

Disability discrimination – Davies v Scottish Courts and Tribunals Service (2018)

Ms. Davies was a court officer suffering from perimenopausal symptoms including headaches, light-headedness, cystitis, heavy bleeding, anaemia, lack of concentration and feeling emotional. Her employer recognised this as a disability and made reasonable adjustments for her.

Ms. Davies began taking cystitis medication which needed to be dissolved in water. When returning from the lavatory, Ms. Davies was concerned that her jug of water was being drunk by two members of the public. She could not remember whether she had dissolved her medication in the water and so informed the two men that her medication had been dissolved in it. Ms. Davies was dismissed for gross misconduct on the grounds that she had knowingly misled the two men and management (on the basis that she should have known that the medication would have turned the water pink), and that she had brought the court into disrepute.

The employment tribunal decided that the dismissal was unfair and amounted to disability discrimination. She was awarded total compensation of £19,000, which included a sum of £5,000 for injury to feelings. It was also ordered that Ms. Davies should be reinstated to her role.

What is a ‘good menopause workplace policy’?

It’s a good idea for employers to introduce a specific menopause workplace policy setting out its approach to menopause and work. If your employer has a menopause workplace policy in place, this is a good sign that they have turned their mind to how the issue can affect women and the kinds of support that might be needed. As well as helping to raise awareness of the issue among the wider workforce, a good menopause workplace policy can:

  • Explain what menopause is, including the perimenopause and postmenopause phases
  • Explain the range of symptoms that women may experience
  • Encourage affected women to be open in conversations with managers, occupational health and HR
  • Encourage staff to have open conversations and provide support to affected colleagues
  • Set out what specific training will be provided to line managers
  • Explain the employer’s approach to risk assessments and the types of workplace adjustments that can be made
  • Explain the employer’s approach to issues such menopause and time off work, performance management and discipline for misconduct where menopause is a relevant factor
  • The menopause workplace policy can signpost other resources and forms of support available to menopausal women (e.g. flexible working policies, employee assistance programmes, counselling services, gym facilities, quiet rooms)
  • Explain that women are protected from discrimination and detrimental treatment because of menopausal symptoms
  • Provide information about internal support networks within the menopause workplace policy and, if relevant, the employer’s menopause champion

What are the three most important things to try and get written in a menopause workplace policy?

I would say the three most important issues for a menopause workplace policy are:

  • Explaining what menopause is (including the perimenopause and postmenopause phases) and the related symptoms: this helps to raise understanding and awareness of the issue amongst the whole workforce. This should help break down the taboo surrounding the subject.
  • Setting out what specific training will be provided to line managers: this helps affected women have confidence that their line managers understand the issue and encourage open conversations.
  • Explain the employer’s approach to risk assessments and the types of workplace adjustments that may be made:  this helps affected women understand what practical steps the employer has taken, and is prepared to take, to help them remain safe, well and effective at work.  This should give women confidence that they will be taken seriously by their employer and offered appropriate support.

 How does employment law protect me during menopause?

Employers have legal duties to take reasonable care of your health and safety at work. While health and safety laws do not give you a direct right to sue your employers for a breach of a relevant obligation, the Health and Safety Executive can take enforcement action and this may lead to criminal sanctions.

There are related legal protections available to you when it comes to menopause and work:

  • If your employer fails to take reasonable care of your health and safety and this causes you to suffer a reasonably foreseeable injury, then you may be able to pursue a personal injury claim in the civil courts
  • If you have raised concerns about health and safety matters and are subjected to a detriment or are dismissed as a result, then you may be able to bring claims in the employment tribunal against your employer

Employers have a duty not to act in a way which seriously undermines the implied duty of mutual trust and confidence. If they do, then this is likely to represent a repudiatory breach of contract, entitling you to resign from your employment. This is known as “constructive dismissal” and could give rise to claims for notice pay and compensation for unfair dismissal. If you have been treated badly, seek specialist legal advice as soon as possible and before resigning from your employment.

You are also protected from discrimination on certain protected grounds, including age, sex and disability. Claims for discrimination have potentially unlimited compensation. “Direct discrimination” occurs where a worker is subject to less favourable treatment (including dismissal) because of a protected characteristic. “Indirect discrimination” occurs where a neutral policy or practice is applied to everyone but, in practice, puts those with a protected characteristic at a specific disadvantage.

Discrimination, when it comes to menopause and work, can also take the form of harassment and/or victimisation and, in the case of disability discrimination, can arise if you are treated less favourably because of something arising as a consequence of a disability, or a failure to make reasonable adjustments to remove disadvantage.

Read more about menopause and work on our blog.

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