We have more working women* in the workforce than ever before, yet menopause and its effects is still often a taboo subject in the workplace. During Menopause Awareness Month, employers are being urged to consider menopause as a business issue which will enhance an inclusive culture, manage risk, and get the best out of their employees. In this article we look at why it matters, the legal risks of getting things wrong, and some tips for managing the issues in the workplace.
*The issues discussed in this article may apply to anyone who experiences menopausal symptoms.
Why it matters: The business case
The business case for emphasising employers' inclusion of older women in the workforce is more than just the right thing to do. Here's why:
The proportion of older women in the workforce is higher than ever before: ONS statistics published in January 2020 indicate that 72.3% of women are in employment in the UK, and of those, almost 4.5 million are 50-64 years old (it's actually the fastest growing economically active group). Factors including the increase in State pension retirement age for women to 65 from 2018 (with further increases planned), increased life expectancy, the continued ripple effect of both Covid-19 and previous economic crises on pension pots, wage depression, and a 'boomerang' generation of children struggling to gain an economic foothold and remaining dependent on their parents for longer, mean that greater numbers of women are continuing to work later in life.
What is more, many older women are at the peak of their careers and have a considerable amount to offer. Time and time again research has proved that businesses with a diverse and inclusive workforce and executive make more profits. Diversity fosters ideas and innovation, diverse and inclusive leaderships make better decisions. A happy and engaged workforce - and one which feels genuinely included - is more committed and less likely to switch jobs.
Yet the menopause and its impact on women is rarely discussed. In 2019, Health & Her surveyed 1000 women aged over 50. The results indicated that the UK could be losing 14 million work days a year related to the menopause. One in four women who experience menopausal symptoms consider leaving their job, with the potential loss of knowledge, experience and talent.
What is menopause?
Menopause is a natural transition stage in most women's lives lasting on average from four to eight years. Of course not all women suffer from symptoms, but for some women the impact can be severe and can last for much longer. Most women experience menopause between the ages of 45 and 55. It is marked by changes in hormones but women may also experience a wide range of physical and psychological symptoms as a result, including:
The legal implications: Successful employment claims
A failure to manage employees with menopausal symptoms in a supportive way can also give rise to legal risk, including constructive and unfair dismissal claims as well as discrimination complaints on grounds of age, sex or disability.
Merchant v BT plc (ET 2012) - Unfair dismissal and direct sex discrimination: The Claimant was dismissed for alleged performance reasons and claimed unfair dismissal and direct sex discrimination. At the time of performance management, the Claimant was suffering menopausal symptoms including lapses in memory, blood loss and anaemia and kidney problems. Although she presented a GP's letter at her dismissal meeting, the manager dismissed without further investigation into the impact of these issues on her performance. The employer's policies recommended occupational health investigations where health issues may be impacting performance, and what is more, the manager had made such referrals in the past in other cases where (non-female) health related concerns had been raised. In this case, however, he believed that he had sufficient personal knowledge to make a decision based on his wife's menopausal symptoms and those of an HR colleague. Unsurprisingly, the Tribunal held that it was "self-evident that all women will experience their menopause in different ways"; the failure to make further enquiries rendered the dismissal unfair. There were also sufficient grounds to shift the burden of proof onto the employer to explain a non-discriminatory reason for the treatment. The Tribunal held that the employer had failed to provide such a reason and the claim of direct sex discrimination succeeded; the dismissing manager's "assumptions" about the Claimant's menopause and its impact amounted to less favourable treatment on grounds of sex.
Davies v Scottish Courts & Tribunals Service (ET 2018) - Unfair dismissal and discrimination arising out of a consequence of a disability: The Claimant was a Court Officer with 20 years' service who suffered a number of perimenopausal symptoms including anaemia, heavy bleeding and light headedness, feeling emotional and sometimes lacked concentration. She required easy access to a toilet and was being treated for cystitis with sachets of medication to be diluted into water; the employer knew of her condition and had made adjustments. The Claimant kept her medication in her pencil case. On one occasion, she re-entered the Court to find her pencil case open and two litigants drinking water from her jug. She (mistakenly) believed they may have drunken her medication and panicked. She was confused in her accounts of what had happened and was dismissed for breach of values and for lying in her evidence. The Tribunal held that the Claimant was disabled and that the dismissal was procedurally and substantively unfair; the investigation had been flawed and the employer did not have reasonable grounds upon which to conclude the Claimant was guilty of gross misconduct. The dismissal was also unlawful disability discrimination as it was unfavourable treatment arising out of a consequence of the Claimant's disability and was not justified. The Claimant was awarded reinstatement, loss of earnings and £5,000 injury to feelings.
A v Bonmarché limited (ET 2019) Direct age and sex discrimination and harassment: The Claimant was a Supervisor in a retail store. Her manager was aware that she had menopausal symptoms. The Tribunal found that she had been subjected to a sustained period of less favourable treatment and harassment on grounds of age and sex by her manager including repeated references to the Claimant being a "dinosaur" (in front of others) particularly whenever she used an iPad to make sales to customers. When the Claimant struggled with a task the manager joked that it was because the Claimant was "menopausal". It was also found that the manager refused to adjust the temperature of the store when the Claimant raised the issue of hot flushes and failed to honour phased return to work hours following an absence due to a panic attack. The Claimant resigned and her mental health suffered as a result of her treatment; she was awarded loss of earnings and £18,000 for injury to feelings. It is notable however that the employer did not attend the hearing to contest the claim so the only evidence available to the Tribunal was the Claimant's own account.
A different outcome was reached in the case of Gallacher v Abellio Scotrail Ltd (EAT 2020) disability discrimination and unfair dismissal. This case was predominantly about the fairness of the Claimant's dismissal. The employer conceded that the Claimant was disabled as a result of menopausal symptoms, however the Employment Tribunal and Employment Appeal Tribunal found that this was not the cause of the Claimant's treatment or dismissal, and that the employer did not have the requisite knowledge of the disability at the relevant time; whilst there was an awareness of some health information, the Claimant had a history of under-reporting her symptoms and had not regarded herself as disabled. As such the Tribunal had been entitled to conclude that the employer did not have actual nor constructive knowledge of any disability. Although the employee's discrimination claim failed, employers can frequently be fixed with constructive knowledge and particular care is needed where the employer has some awareness of symptoms.
Viewing menopause through an intersectional lens
In managing workplace issues in the context of menopause, employers should be wary of making stereotypical assumptions. Although predominantly affecting older women things may not always be that simple:
- some employees may have menopausal symptoms much earlier - even in their 30s - showing that it is not safe to make assumptions based on age;
- employers should consider the potential impact of menopausal symptoms on transgender employees. For example, Trans men may experience natural menopausal symptoms if their ovaries remain in place and they are not undergoing any hormone treatment, or they may experience surgical menopause if they undergo a hysterectomy. Trans women on the other hand may also experience pseudo-menopausal symptoms if they cease hormone treatment or where hormone levels are unstable;
- lesbian, bisexual and transgender employees who are in same-sex relationships may have exacerbating circumstances if both partners suffer symptoms at the same time;
- disabled employees with existing health conditions may have more complex needs; and
- there is also some evidence that statistically menopausal symptoms may be more severe for women of colour.
It is therefore important for employers to remember that no two women's experiences will be exactly the same, and the intersectionality of any employee's individual protected characteristics may influence the situation.
In October 2019 new ACAS Guidance was published on helping to manage the impact of menopause at work.
In September 2019 in the lead up to the General Election, Dawn Butler MP, Labour’s Shadow Women and Equalities Secretary, pledged as part of the Labour Manifesto to enact a number of obligations on employers with at least 250 employees in respect of managing menopause at work. These included mandatory training, providing flexible working policies, ensuring menopause is regarded as a long-term health condition in respect of any absence management procedures, and to carry out risk assessments.
Of course, the result of the General Election meant that this has not materialised, however it is still possible that any future proposals may receive cross-party support; the Conservative MP Rachel Maclean was actually the first to raise the issue in Parliament and continues to campaign on it.
Getting it right: Top tips
- Develop a menopause policy and listen to views from employees as part of the process. It is often helpful to engage with any female affinity/employee network group as part of consultation on the policy;
- Eliminate the taboo by talking about the menopause as a workplace issue so employees and managers are not embarrassed if and when it comes up;
- Equip managers to have supportive conversations with their employees through training and workshops;
- Enable reasonable adjustments where they would make a real difference, such as flexibility with duties or hours or permitting working from home where practicable;
- Small things can have a big impact such as adjustments to uniform requirements if a uniform is exacerbating hot flushes, allowing additional breaks, or considering where an employee is working relative to heaters, air conditioning, or windows; and
- Think intersectionally and remember that menopause affects employees in different ways.
If you would like further information, please feel free to contact any of our team members.