Menopause: the next protected characteristic?
We're sending out our bulletin on World Menopause Day in the interests of promoting its purpose of raising awareness about the menopause!
Back in July, the House of Commons Women and Equalities Committee launched an inquiry into workplace issues surrounding the menopause. The aim of the inquiry was to examine the extent of discrimination faced by those experiencing menopausal symptoms in the workplace and investigate how the Government might offer better support. Responses to the inquiry closed on 17 September and the Committee will now draw up recommendations with a view to shaping future policies and practices.
According to the Committee's chair, Caroline Nokes, a key message coming through the inquiry was a lack of clarity offered by the existing legislation; claims can often involve overlapping principles of disability, age and sex discrimination. She declined ruling out the possibility of the Committee recommending a change to the Equality Act 2010 to include specific protection for the menopause. Could menopause be the next protected characteristic?
What is the menopause?
The menopause is a natural transition stage in most women's lives when they stop having menstrual cycles. Transgender men and people who are intersex or identify as non-binary may also experience menopause and the symptoms that go with it.
Menopause usually takes place between the ages of 45 and 55, but each person is different and it can happen outside of this age range. The menopause is said to have occurred when there have been no menstrual cycles for 12 consecutive months, but many people can be affected by symptoms for a long time before then (the perimenopausal period).
Not all people suffer from symptoms, but for some the impact can be severe and long lasting. The symptoms can be physical or psychological and include low mood, anxiety and panic attacks; fatigue and poor concentration; heavy/painful periods and anaemia; and hot flushes, sweating and rashes.
Employers be aware!
Employers are becoming increasingly aware of the way in which the menopause can affect employees in the workplace, which is a welcome development. If an employer fails to act in a supportive way toward those experiencing menopausal symptoms then it runs the risk of legal claims, including potential claims for unfair dismissal and age, sex or disability discrimination.
Successful direct sex discrimination claims have been brought by women experiencing less favourable treatment compared to men. In Merchant v BT plc, the claimant was dismissed for alleged performance reasons after suffering menopausal symptoms, including lapses in memory, blood loss, anaemia and kidney problems. The manager who was responsible for the decision to dismiss failed to investigate the impact of symptoms set out in a letter from the claimant's GP, as he believed that he had sufficient personal knowledge based on his experience of his wife's symptoms and those of a female HR colleague. The tribunal upheld the claimant's claims for unfair dismissal and direct discrimination, finding that the dismissing manager's "assumptions" about the claimant's menopause and its impact amounted to less favourable treatment on grounds of sex.
Another thing to watch out for is age discrimination. In A v Bonmarché Limited, the claimant was a supervisor in a retail store, working under a manager who was aware that she had menopausal symptoms. The claimant's manager called her a "dinosaur" and when she struggled with a task joked that it was because she was "menopausal". The claimant's manager refused to adjust the temperature of the store to alleviate her hot flushes and also failed to honour a phased return to work following an absence. The tribunal found that the claimant had been subjected to a sustained period of direct discrimination and harassment on grounds of age (and sex).
It's also worth bearing in mind that indirect discrimination may occur if an employer has policies or practices which disadvantage people who are going through the menopause. This is particularly relevant in the context of performance management, as employees who are struggling with menopausal symptoms may not be able to meet certain performance targets as easily as colleagues.
Finally, there's the issue of disability discrimination. Does the menopause amount to a disability? Not in itself, but the physical or mental symptoms of menopause can give rise to disabilities within the meaning of the Equality Act 2010 depending on their severity and effect. If this is the case, protection against disability discrimination and the duty to make reasonable adjustments will be triggered. For example, an employer's usual policies on sickness absence or performance may need adjusting to take account of the effects of the menopause. The physical features of the workplace may also require some adjustment for those who are suffering with severe menopausal symptoms.
Interestingly, the Employment Appeal Tribunal has very recently held in Rooney v Leicestershire City Council that a tribunal erred in striking out the claimant's claim of disability discrimination on the basis that her menopausal symptoms (she claimed that the physical, mental and psychological effects she had suffered from for a period of 2 years meant that she struggled to cope) did not amount to a disability. The claim has been remitted to a differently constituted tribunal to reconsider, but demonstrates how difficult it is for those experiencing menopausal symptoms to establish that they amount to a disability.
What guidance is available?
Acas has published guidance on the menopause which provides tips for supporting employees. It recommends that employers develop a menopause policy and take steps to raise awareness and dialogue amongst all staff about the menopause. Training is a useful tool for employers, as managers who do not have experience of the menopause may not know what support is available or feel confident having conversations around the topic with their employees. Other guidance includes 'Menopause and the Workplace Guidance' published by the British Menopause Society, 'The Menopause and work', published by Unison and the TUC guidance, 'Menopause at work'.
We recommend taking a proactive approach to dealing with the menopause in the workplace and can provide you with training to help inform your approach. We can also offer you a menopause policy for a fixed cost. If you are interested, please see our flyerhere', for more information.