UK employment law protects those suffering the effects of chronic illness or disability – but, writes Tina Chander, head of employment law at Midlands law firm, Wright Hassall, for those women who experience the potentially debilitating and severe symptoms of the menopause, it is often not that straightforward …
Employment tribunals citing the menopause as the primary grievance have more than doubled since 2019, leaving many employers questioning just what their legal obligations are to these women.
Of course, each woman’s experience of the menopause will be different, so there is no sure-fire solution for managing the effects it has in the workplace. But that is little excuse for business owners, who really need to put some plans in place if they want to minimise any potential legal threat in the future.
So, how can businesses enhance their professional environments to avoid facing claims of discrimination? And what can women do if they feel they have been a victim of discrimination? Here are the facts:
How can the menopause affect the workplace?
With 75-80% of them still at work, women of a menopausal age form the fastest-growing demographic across the UK workforce. Between 30-60% of these women will experience serious conditions as part of the menopause, with an estimated 14 million workdays lost per year due to the far-reaching physical or mental complaints they suffer.
A quarter (25%) of those most badly affected will have contemplated resigning from their job at some point, with nervousness about revealing menopause-related health challenges to male or younger managers being mentioned as a major factor in this.
What does the law say?
Though there isn’t any legislation dedicated exclusively to protecting menopausal women, they are covered under the Equality Act 2010 which comprises of three principal characteristics – age, sex, and disability discrimination – and the Health and Safety at Work Act 1974, which incorporates working conditions.
Rulings in the majority of menopause-related tribunals can be erratic at best, with comparable cases often accomplishing very different outcomes, especially when the case cites disability discrimination. Although the most severe and long-term symptoms of the menopause can hypothetically be covered under section 6 of the Equality Act (disability), medically, the menopause in itself is considered to be a phase of life, much like pregnancy or teething. So, despite the fact that there have been some successful disability claims, most will be that of sex discrimination.
What can employers do?
There is no protection from the effect that an employee’s symptoms or repeated absence might have on a business’ performance. There is also no legal obligation to have a dedicated policy to support employees through the menopause.
To maintain wellbeing in the workplace, and so that everyone knows what is expected of them, however, ACAS recommends that a policy or framework be devised, that will stipulate just how the business plans to tackle any issues which might be brought about by the menopause.
The policy should look to cover topics such as how the business will educate and raise awareness of the menopause amongst staff, the provision of a confidential support network for those that need it, and advice on how not to exacerbate a woman’s symptoms by creating a challenging working environment.
Incorporating risk assessments is beneficial for protecting the interests of all those impacted, and these should clearly address themes such as flexible working, drinking water, ventilation and restrooms.
It is also reasonable to include any possible self-help measures that may benefit sufferers or help to relieve their symptoms. For example: taking additional breaks; frequent exercise; healthy eating; improving access to natural light; reducing intake of caffeine; wearing clothing made of natural fibres; and reducing or stopping smoking and/or drinking alcohol.
It is wise to create any new policy with the assistance of an occupational health professional, to ensure that it cannot be left open to misinterpretation – which is a common starting point for many discrimination claims.
What should you do if you feel you are being discriminated against?
Employees who feel that they are being victimised because of their menopausal status should be careful to keep thorough, diarised records of any correspondence, conversation, or action they have taken to try to resolve the issues at hand. If needed, this documentation will help to build a picture of any workplace neglect within a legal claim.
Claimants will need to make it clear to the court that every other possible solution has been attempted before a case is pursued, so it is vital to try and obtain support or assistance internally in the first instance, whether that be from an HR partner, a manager, colleague, or a trade union representative – basically, anyone who may be able to help you achieve the changes you require.
If this fails, the next step would be to make a formal complaint or launch a grievance procedure, as this will ensure that the matter has to be formally acknowledged. The Citizens Advice Bureau can provide support for this if needed
If positive results still cannot be achieved, relationships deteriorate, discrimination worsens, or an employee chooses or feels forced to resign over the ongoing situation, then there may be grounds for an employment tribunal. Those who find themselves in this position should seek expert legal advice immediately.
An employment tribunal will help to determine if a claim falls under unfair or constructive dismissal – ‘unfair’ being when an employer has ended a contract of employment on unreasonable grounds, and ‘constructive’ being when an employee feels that they been mistreated to the point where they had no other option but to leave. Both require the employee to have had at least two years of service at the business in question.
Employment tribunals can be stressful, deeply personal, and costly to the claimant. Given the inconsistent nature of historical rulings in menopause cases, claimants should be absolutely positive that they have exhausted all other avenues first.
However, no-one should be suffering in silence, and legal advice should most definitely be sought if an employer is failing in their duty to protect the wellbeing of their staff.
