Of Counsel London
Breaking the menopause taboo in the workplace18 October 2021
"It is estimated that almost a million women in the UK have left their jobs as a result of menopausal symptoms."
The menopause is a natural part of ageing, usually occurring between 45 and 55 years of age. In the UK, while the average age for a woman to experience menopause is 51, many women will begin to experience symptoms in their mid to late forties (or earlier).
What’s the impact?
Around 1 in 4 women will suffer severe menopause related symptoms, including headaches, difficulty sleeping, hot flushes, poor concentration, anxiety and depression.
Symptoms of the menopause can last several years.
Suffering in silence, fearing a lack of understanding or support from managers, can lead to a decline in self-esteem, a deterioration in attendance and/or performance and, eventually, a feeling that resigning is the only option.
Employers who fail to adapt working environments and practices for women experiencing the menopause risk losing talent and increased recruitment costs.
Women leaving businesses as a result of menopausal symptoms at the peak of their experience (many of whom are currently working in, or eligible for, senior management roles) will adversely impact diversity at executive levels and affect the outcome of both the gender pay gap and the gender pensions gap.
Menopause and the law: potential for discrimination claims
Discrimination based on any of the “protected characteristics” set out in the Equality Act 2010 is against the law. Currently, menopause is not a protected characteristic.
However, employers still risk discrimination and/or harassment claims if the symptoms of menopause are treated differently from other medical conditions. An example of this would be an employer failing to consider whether menopausal symptoms had contributed to an employee’s decline in performance, when a condition affecting a man would not have been overlooked in the same way (direct sex discrimination) or a workplace policy or procedure which disadvantages employees who are going through the menopause, e.g. penalising employees who need to take more frequent toilet breaks (indirect sex, disability or age discrimination).
"Employers should ensure that it is made clear that “banter” about the menopause is considered just as unacceptable as “banter” about any protected characteristic."
Employment tribunals have held that comments relating to the menopause can constitute harassment on grounds of age or sex. Employers should ensure that it is made clear that “banter” about the menopause is considered just as unacceptable as “banter” about any protected characteristic.
In some cases, symptoms of the menopause will amount to a “disability” for the purposes of the Equality Act 2010. The legal definition is an impairment which has a substantial and long-term (12 months or more) adverse effect on someone’s ability to carry out normal day-to-day activities.
If an employee with a disability is placed at a substantial disadvantage as a result of a policy or practice at work (and the employer is aware or ought reasonably to be aware of this) a duty to make “reasonable adjustments” arises. Reasonable adjustments should seek to reduce or remove disadvantages an individual may suffer because of their disability.
Examples in this context could include recording absence because of the menopause separately from other sickness absence, making adjustments to uniform rules or allowing for more regular breaks.
Women’s Health Strategy
In July this year, the House of Commons Women and Equalities Committee launched an inquiry into menopause and the workplace. The committee will evaluate:
- how practices addressing workplace discrimination relating to menopause can be implemented;
- the extent to which current legislation protects women from discrimination in the workplace associated with the menopause; and
- the economic and societal impact of this type of discrimination.
Caroline Nokes MP, Chair of the Women and Equalities Committee, said:
“Three in every five women are negatively affected at work as a result of the menopause. Excluding menopausal women from the workplace is detrimental to our economy, our society and our place on the world stage […] The menopause is ignored in legislation. It is time to uncover and address this huge issue, which has been left near-invisible for far too long.”
Evidence submitted to the inquiry will inform the development of a “women’s health strategy”.
"Employers must approach the menopause sensitively, as a health and wellbeing concern for staff."
What should employers do now?
Employers must approach the menopause sensitively, as a health and wellbeing concern for staff (like any other medical condition). There are several key aspects to this:
- Raising awareness of what the menopause is, the impact it can have on individuals’ working lives and the support available to employees. Guidance should be freely available in the workplace.
- Manager training. Employees should feel confident in approaching their managers to raise concerns and managers should know how they can provide support. Appropriate support can help reduce staff absence and improve employee wellbeing and productivity.
- Encouraging open and respectful communication about the menopause will give employees the confidence not to suffer in silence.
- Lack of assumptions. Employers should be aware that all types and stages of the menopause are different, and that symptoms vary for everyone. It is important to consider individuals and workplace practices on a case by case basis to avoid the risk of discriminating indirectly.
*We have referred mainly to women in this article. Please note that the above applies equally to people who experience the menopause but do not identify as women.