Article written by Simran Lalli, Solicitor, Employment department
Employers should check they are having the right conversations to support those experiencing problems in the workplace due to menopause.
With growing numbers of women continuing in the workforce through middle age, and the rising numbers of tribunals referencing menopause, the topic is set to be a key driver for workplace policies in future.
Official labour statistics show that the over-50s accounted for 72 per cent of the growth in the employment of women between 1992 and 2012. Figures from the Courts reveal that menopause was cited in twice as many tribunal cases in the first six months of 2021, compared with the whole of 2018.
It’s also important for employers to recognise that it is not just those who were gender-assigned as women at birth, as it may also affect people who are transgender or intersex. Relatives and carers of someone going through the menopause may also be affected, for example due to sleep disturbance, a common symptom of the menopause.
The Health and Safety at Work Act (1974) requires employers to ensure the health, safety, and welfare of all workers. In the case of those experiencing menopause, this could include risk assessments that consider their specific needs, such as adequate ventilation to avoid over-heated working conditions, or provision of appropriate toilets and access to water.
The Equality Act (2010) prohibits discrimination on the grounds of sex, whether directly, indirectly, or by harassment. An example in the case of menopause could be where an employer does not consider symptoms arising from the menopause to be mitigating factors in reviewing performance, where similar symptoms arising through another condition would be considered for male workers.
An important milestone in recognising the impact of the menopause came with a tribunal judgement handed down in 2019. This involved a woman who suffered significant medical problems together with stress, memory loss and tiredness. While the tribunal’s judgement did not suggest that experiencing menopause amounted to a disability, it said that the symptoms may have physiological and physical consequences that meet the definition of disability under the Equality Act, with a substantial and long-term adverse effect on a person’s ability to carry out day-to-day activities.
Many employers still feel this is a subject they do not want, or perhaps need, to tackle, but it is an issue which cannot be ignored and a clear policy is important. The impact for some will be the same as having a long-term health condition, requiring reasonable adjustments.
But while open discussion can help to avoid difficulties arising, enabling women to feel they can raise problems, while also making sure that fellow workers appreciate the impact of menopause symptoms, a sensitive approach is essential.
This is demonstrated by one of the latest cases to reach a tribunal in January 2022 where sales assistant Leigh Best won an age and sex harassment case after her male boss made loud comments about her going through menopause in front of customers. The hearing panel found that the employer had been tactless in how he approached a “highly sensitive topic”, creating a humiliating environment for her at work.