UK employment law provides extensive safeguarding to those suffering from chronic illness or disability in the workplace, but what about those women and non-binary people struggling with the detrimental and often severe impact of menopause?
The last few years have seen a steady increase in the number of employment tribunals where the claimant has noted menopause or perimenopause as a reason for their grievance, and as such employers are needing to become more aware of their legal obligations.
There is no universal approach to managing menopause in the workplace simply due to the very unique impact it will have on each individual woman, but when a person’s symptoms hamper their ability to undertake their job, where do all those affected stand legally?
How can menopause affect the workplace?
- Approximately 75-80% of women of menopausal age are currently in work, making them the fastest-growing demographic in the UK workforce.
- Between 30-60% of menopausal females will suffer extreme symptoms over the course of 4 to 8 years. Statistics indicate that the UK could be losing around 14 million workdays per year because of the irregular, recurrent physical and/or psychological ailments suffered by these women. These can include hot flushes, night sweats, insomnia, fatigue, anxiety, depression, and ‘brain fog’.
- 25% of women experiencing symptoms have considered leaving their job, and most of these women are understandably uneasy divulging their menopause-related health challenges to line managers, many of whom will be male or younger than them. This has caused somewhat of a perfect storm for employers.
What does the law say?
Whilst there is no specific legislation protecting menopausal women and non-binary people, there are two possible legal routes that can be taken. Firstly, they could claim under the Equality Act 2010 which includes three key characteristics: age, sex, and disability discrimination; secondly, there is the Health and Safety at Work Act 1974 which covers working conditions and can reflect the needs of women whose health concerns are not being sufficiently managed by the employer.
Frustratingly, the courts are often inconsistent with their rulings around the issue, with similar cases often yielding different results, particularly when the claim is of disability discrimination.
Whilst severe, long-term menopausal symptoms can technically be covered under section 6 of the Equality Act (disability), medically speaking, menopause is a phase of life, akin to teething or pregnancy. So, although successful disability claims have been made, they have been few and far between. The majority of successful claims will be that of sex discrimination. This is because it specifically concerns the unfair treatment of a person because of their gender.
What can employers do?
Legally employers are not required to have a dedicated policy to support employees through menopause, but they also have no protection from the impact that an employee’s symptoms may have on business performance.
Symptoms can impact performance to such a degree that employers may be legitimately concerned about their employee’s capacity to do their job. They might believe that commencing a formal capability process is a viable step, but this is something to be particularly wary of. What ACAS does suggest is that a framework be developed to support line managers in tackling absenteeism or ill health due to menopause in a sympathetic manner.
This framework, or workplace policy, should cover training and awareness-raising sessions for all staff, the implementation of a confidential personal support network for anyone needing assistance in the workplace due to menopause, and matters pertaining to the working environment so as not to exacerbate a woman’s symptoms.
Risk assessments are critical for safeguarding all concerned, and these should specifically address areas such as ventilation, air conditioning, drinking water, restrooms, and flexible working practices.
It is also practical to incorporate possible self-help measures that might support a sufferer in relieving their own symptoms whilst at work. For example:
- Access to natural light
- Rest and relaxation
- Wearing natural fibres
- Healthy eating
- Frequent exercise
- Not smoking
- Reducing intake of caffeine and alcohol
It is advisable to discuss any new policy with a medical or occupational health professional at the outset to ensure that it isn’t open to misinterpretation, which is a frequent starting point for many discrimination claims.
What should you do if you feel you are being discriminated against?
If you feel that you are being discriminated against it is important to document everything as it will help to build a case.
You will need to be able to prove that you have taken every possible step to resolve the situation, and have a detailed record of these. These steps should include:
- Find a trusted source internally, be that someone in HR, your line manager, a Union representative, or a more senior colleague to make your concerns known. They might actually be able to help you achieve change without taking the matter further.
- If this is unsuccessful, make a formal complaint or launch a grievance procedure as then your concerns will need to be officially acknowledged. The Citizens Advice Bureau is an excellent source of help.
- If this doesn’t achieve the desired results, the working conditions don’t change, you feel worsening discrimination, or you have felt the need to resign because of the ongoing situation, you should seek legal support as you may have a case for an employment tribunal.
It should be noted that employment tribunals can be stressful, deeply personal, and costly. Plus, considering the inconsistent nature of rulings in menopause tribunals to date, you will want to be sure that all other viable options have been considered first.
That said, no one should suffer in silence, and anyone concerned about their treatment at work in response to menopausal symptoms should definitely seek expert legal advice.
About the author: Tina Chander is the Head of Employment Law at Midlands law firm, Wright Hassall and deals with contentious and non-contentious employment law issues, acting for small businesses to large national and international corporations. She advises on a variety of employment law matters, including all aspects of employment tribunal proceedings and appeals.
About the firm: Wright Hassall is a top-ranked regional law firm, providing legal services including: corporate law; commercial law; litigation and dispute resolution; employment law and property law. The firm also advises on contentious probate, business immigration, information governance, professional negligence and private client matters.
