Employment Law: Menopause in the Workplace | September 2021

Employment Law: Menopause in the Workplace | September 2021

The Women and Equalities Committee of the House of Commons recently opened an enquiry into workplace issues surrounding women who are experiencing symptoms of the menopause. The purpose of the enquiry is to examine how best to address the problem of women who feel they have to leave their jobs as a consequence of experiencing menopausal symptoms. In addition to this, it will consider the current discrimination legislation and practices and whether enough is being done by employers when it comes to providing support for these women.

Menopausal women are the fastest-growing demographic in the workplace and this month’s Employment Law article builds on our ‘Top Ten Tips for... Managing Menopause in the Workplace’ article and reviews what information is currently out there to support employees and employers when faced with this issue. It should also be understood that transgender people and those who are intersex or identify as non-binary may also experience menopause and the symptoms that go with it.

Legislation currently exists, mainly under the Equality Act 2010, where menopause is largely covered under three protected characteristics and disability discrimination. In this instance, direct discrimination would be where an employee is treated less favourably because of a protected characteristic which is likely to be disability, sex or age in the case of menopause. Furthermore, indirect discrimination could also apply where an employers practice or criteria is discriminatory in relation to a protected characteristic.  An example of this is where a policy is applied to all employees that puts women at a particular disadvantage compared with men and can’t be justified.

The above legislation has also been referred to in a number of tribunal cases that have been won concerning menopause including:

  • Merchant v BT (2012) where the claimant was dismissed following a final warning for poor performance while she was experiencing difficult menopausal symptoms;
  • Davies vs Scottish Courts and Tribunal Service SCTS (2018) resulted in a successful claim relating to disability;
  • A v Bonmarche Ltd (2019) resulted in successful claims of age discrimination and sex discrimination.

The Health and Safety at Work Act 1974 also provides legislation for safe working, which extends to the working conditions when experiencing menopausal symptoms. Underpinning all of this, ACAS has also introduced new codes of practice surrounding flexible working that could apply in these circumstances. Not only are tribunal awards costly, but they can and have been costly in terms of legal fees - not to mention the reputational costs to the employer in not supporting the health and wellbeing of all employees.

So, what can the employer do and what good practice exists to support both employers and employees when dealing with menopause at work?

Signposted by ‘Menopause Matters’ UNISON have produced guidance and a model policy for employers that supports both employees and their managers in the workplace.

‘A Guide to Managing Menopause at Work - Guidance for Line Managers’ has also been produced by CIPD (May 2021) that provides guidance covering a wide range of responses and strategies that employers and managers should consider in dealing with this issue. 

The Women and Equalities Committee of the House of Commons enquiry is still calling for evidence and is encouraging submissions of evidence from individuals as well as organisations. Click here for further information.

We would continue to urge employers and employees to seek further detailed information and advice on dealing with menopause at work. If you have any HR issues or would like support when managing menopause in the workplace, please don't hesitate to contact us.

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