There are 33 million women in the UK, and at some stage and in some way, they will experience the menopause or symptoms connected with it. But if that isn’t enough, the impact of the menopause is not a “women’s issue” only. It affects anyone, one way or another, who has any interactions with women or people assigned female at birth. These interactions can be at home, at work, out in the community or even in the gym. It’s important therefore that we all get comfortable with this topic and become familiar with what it is and what it means.
Stacie Cheadle, Croner-i Content Consultant and employment law researcher, looks at the law surrounding the menopause and what implications of this employers need to be aware of.
The law
Health and safety
Under the Health and Safety at Work, etc Act 1974, employers must ensure the health, safety and welfare of their employees. Furthermore, under the Workplace (Health, Safety and Welfare) Regulations 1992, employers are obliged to make workplaces suitable for the individuals who work in them and under the Management of Health and Safety at Work Regulations 1999, to carry out risk assessments of their employees’ work and workplace, including any work from home, for these purposes. In completing these risk assessments, they should consider the physical environment as well as any psychosocial risks.
When it comes to the menopause, employers should ensure that risk assessment processes are in place that consider specific risks to perimenopausal and menopausal women/people and include suitable arrangements to identify reasonable adjustments for any individual who requires them.
The Equality Act 2010
The Equality Act 2010 (EqA) legislates for what are known as “protected characteristics”, offering specific protection to those who have one or more of these. Menopause is not a protected characteristic in its own right, nor is it set to become one after the Government rejected calls in January 2023 for it to be made so from the parliamentary Women and Equalities Committee (WEC) report, Menopause and the Workplace.
However, case law has demonstrated that there is the possibility of the application of the EqA to the menopause regardless of its lack as a standalone protected characteristic, by way of the disability discrimination protections of that Act. Section 6 of the EqA defines disability as a physical or mental impairment which has a substantial, long-term adverse effect on a person’s ability to carry out day-to-day activities. Increasingly, it is being recognised that some people with menopausal symptoms meet this definition, depending on the individual circumstances.
Case law
In the case of Merchant v BT plc, before an employment tribunal (ET), Ms Merchant alleged that she had been discriminated against on the grounds of her gender because her employer failed to deal with her menopausal symptoms in the same way that it would have dealt with other medical conditions.
Ms Merchant was underperforming in her role and had been subject to the capability or performance management process a number of times. She reached a final written warning and her employers were to decide whether to offer her alternative employment or dismiss her. Ms Merchant provided her employers with a letter from her GP. This said that she was going through the menopause, which could affect her level of concentration at times, and also that she was suffering stress from being a carer for two members of her family.
Although the performance management report said that there must be investigation into whether her underperformance was due to health factors, the manager carrying out the process decided to not investigate the possible impact of the employee’s menopause. Ms Merchant was dismissed and subsequently brought claims for unfair dismissal and direct sex discrimination under the EqA. The ET upheld Ms Merchant’s claims.
In 2021, the case of Rooney v Leicester City Council also came before an ET. In this case, Rooney started her role as a childcare social worker in August 2006. In 2017, she started to experience menopausal symptoms so had several periods of sickness absence because of this and due to work-related stress. Rooney felt that the management of her absences by her employer, Leicester City Council, was insensitive and heavy-handed, which led to her resignation in 2018.
The employee raised two separate ET claims: first for constructive dismissal, non-payment of holiday and overtime and reimbursement for expenses. Later, she also submitted a claim form asserting disability and sex discrimination on the grounds of her disability due to the menopause.
The ET summarised her evidence that her symptoms resulted in her “forgetting to attend events, meetings and appointments, losing personal possessions, forgetting to put the handbrake on in her car and forgetting to lock it, leaving the cooker and iron on and leaving the house without locking doors and windows. She also spent prolonged periods in bed due to fatigue/exhaustion. She further referred to dizziness, incontinence and joint pain”. However, the ET dismissed the claim of disability discrimination saying that her medical conditions did not amount to a disability. It also stated that any impairment was not long-standing but this was unsupported by any reasoning.
The ET struck out Rooney’s sex discrimination claim saying that it had no reasonable prospect of success, that it was an “add-on” without any substance and resulted from Rooney’s embarrassment of talking about her symptoms with male colleagues.
On appeal, the Employment Appeal Tribunal (EAT) couldn’t find an explanation as to how the ET concluded that Rooney’s evidence, which it did not reject, did not demonstrate an effect on day-to-day activities that was more than minor or trivial. Additionally, the EAT found that the ET had erred in focusing on the things that Rooney could do and did not weigh this against what she could not do.
The EAT therefore concluded that the ET‘s decision to dismiss the sex discrimination claim failed to comply with the fundamental requirement to explain to the claimant why her appeals were struck out and did not take into consideration the employee’s claims. As a result, the case was remitted to the ET for further consideration and the door was left open for the menopause to fall within the definition of disability.
Finally, there is the 2023 case of Lynskey v Direct Line. In this case, the claimant was refused a pay rise and subjected to a disciplinary process because of alleged poor performance despite a clear link with her menopausal symptoms which included “brain fog”, concentration issues and memory problems.
The ET found that there was no consideration for the impact that the menopause was having on her performance and no adjustments were made to support her in the workplace. The claimant was therefore successful in her claims for failure to make reasonable adjustments and s.15 discrimination arising from a disability and was awarded £64,645.07.
Conclusion
It is clear from the above that whilst the law doesn’t offer any specific protection to those going through the menopause, it nonetheless is worded widely enough to apply to these individuals. As a result, employers should consider that an employee with the menopause could be disabled and therefore examine what reasonable adjustments can be made to the workplace and to processes, where it is appropriate to do so. These could include ensuring there is fresh air or temperature-controlled spaces and a private room or space with less distractions, to reduce or remove the disadvantage caused by the menopause.
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