UK employment law offers wide-reaching safeguards to anyone who might be suffering from chronic illness or disability in the workplace. But what about for women who are struggling with the sometimes detrimental and frequently severe effects of the menopause?
There has been a steady increase in the number of employment tribunals in recent years in which the claimant has cited the menopause or perimenopause as a primary reason for their grievance. Therefore, employers now need to become better educated as to their legal obligations.
One quarter of women experiencing the strongest of symptoms will have considered leaving their job
There is no universal approach to managing menopause in the workplace simply due to the unique impact it has on each individual woman, but when a person’s symptoms hamper their ability to undertake their job, where do all those affected stand legally?
Women of a menopausal age are currently the fastest-growing demographic in the UK workforce, with between 75-80% of women of menopausal age in work.
Between 30-60% of menopausal females will suffer intense symptoms over the course of four to eight years, and statistics indicate that the UK could be losing approximately 14 million workdays per year because of the irregular, recurrent physical and/or psychological issues endured by these women.
One quarter of women experiencing the strongest of symptoms will have considered leaving their job, with many reporting an unease in disclosing any menopause-related health issues to male or younger line managers. This has caused something of a perfect storm for employers.
Although there is no particular legislation that protects menopausal women, there are two potential legal routes that can be taken.
- They may be able to claim under the Equality Act 2010, which includes three core characteristics: age, sex and disability discrimination.
- There is also the Health and Safety at Work Act 1974, which covers working conditions and reflects the needs of anyone whose health concerns are not being sufficiently managed by the employer.
Disappointingly, rulings in menopausal tribunals are often inconsistent with similar cases, achieving very different results, particularly when the claim is of disability discrimination.
Despite severe, long-term menopausal symptoms being technically covered under section 6 of the Equality Act (disability), medically speaking menopause is a phase of life, rather like teething or pregnancy. So even though there have been successful disability claims, the majority of successful cases will be that of sex discrimination. This is because it specifically concerns the unfair treatment of a person because of their gender.
Create a framework that supports line managers in dealing with ill health due to the menopause
What can employers do?
Employers are not legally obliged to have dedicated policies that support employees through the menopause, but equally, they also have limited protection from the impact that an employee’s symptoms might have on the business.
Occasionally, symptoms can impact performance to such a degree that employers may be legitimately concerned about their employee’s ability to do their jobs. They might even feel that commencing a formal capability process is a viable step, but this is not something that should be undertaken lightly.
The Advisory, Conciliation and Arbitration Service (ACAS) suggests that the best way forward is to create a framework that supports line managers in dealing with absenteeism or ill health due to the menopause. This kind of workplace policy should include training and awareness-raising sessions, the provision of confidential support, and any matters relating to the working environment so that a woman’s symptoms are not exacerbated.
Risk assessments are essential for safeguarding all concerned, and these should explicitly address areas such as ventilation, air conditioning and flexible working practices. It would also be helpful to incorporate suggestions on self-help measures that may help a sufferer to more effectively manage their own symptoms while 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.
Advice for sufferers
If you believe you are being discriminated against because of the menopause, it’s important to document everything. You need to prove that you have taken every possible step to resolve the situation. Possible steps should include:
- Finding a trusted source, be that your line manager, a union representative, HR partner or a more senior colleague, to make your concerns known. They may be able to help you achieve change without escalating the matter further.
- If unsuccessful, make a formal complaint or launch a grievance procedure. This will ensure that your concerns are officially acknowledged. The Citizens Advice Bureau can offer support.
- If the desired results aren’t achieved, working conditions don’t change, discrimination worsens or you have felt forced to resign because of the ongoing situation, then you should seek legal support as you may have a case for a tribunal.
It should be understood that employment tribunals can be stressful, deeply personal and extremely expensive. Couple that with the inconsistent nature of rulings in menopause tribunals to date, and you will want to be sure that all other feasible options have been considered first.