DISABILITY HISTORY MONTH RUNS FROM 16 NOVEMBER TO 16 DECEMBER 2023.
For our fourth article that spotlights disability issues, we focus on menopause.
Menopause and the workplace
Following on from our previous articles on this topic last year, there have been some recent cases and developments on the issues around menopause and the workplace.
The British Standards Institution published a report earlier this year examining why women leave the workforce early (not out of personal preference). Of the UK women surveyed, the report found that:
- 20% mentioned health or wellbeing considerations for the menopause as a barrier to continuing in work.
- 54% would find it difficult to raise health and menopause-related issues with their employer and 60% would be uncomfortable raising these issues with a male manager.
- 71% said formal policies to address personal health and wellbeing issues such as menopause would be helpful. However, only 4% were aware of such policies in their organisation.
These figures are an important reminder of the impact that going through menopause has on an employee's experience in the workplace and it is crucial for employers to have policies and procedures in place to support employees through the menopause transition better.
Recent case law
Although menopause is not specifically considered a protected characteristic under the Equality Act 2010 (the Act), those experiencing menopause may be protected from discrimination on the basis of other characteristics protected under the Act, such as sex, age and disability.
In the recent case, Lynskey v Direct Line Insurance Limited, it was held that a low appraisal rating, a written warning and the removal of sick pay were acts of discrimination arising from disability. The employer was found to have treated the employee unfavourably because of something arising in consequence of her disability (in this case, menopause) and failed to make reasonable adjustments.
The employer was aware of the employee's menopause symptoms, which negatively impacted her work performance, in contrast to her previous years of good performance. These symptoms included low mood, anxiety, mood swings, poor self-esteem, effects on memory and poor concentration over a three-year period.
Although the employer did make adjustments and provided additional support and training to the employee, the tribunal considered that it should have gone further: the performance procedure should have been abandoned, the employee's targets lowered and a move to a different role considered.
With menopause-related employment tribunal claims on the rise, it is important for employers to be aware of these potential discrimination claims and its duty to make reasonable adjustments where menopause symptoms could amount to a disability under the Act.
Other developments
In its response earlier this year to the Women and Equalities Committee's first report: Menopause and the Workplace (published on 28 July 2022), the government rejected the recommendations to legislate immediately to permit discrimination claims to be raised on a dual basis and to make menopause a protected characteristic under the Act. However, the government did accept the recommendation (in part) for guidance on menopause to be published by the Health and Safety Executive and the Equality and Human Rights Commission within six months.
It would be worthwhile for employers to review this guidance when it is published, as it aims to provide a set of clear and simple principles that employers will be expected to apply to support disabled people and those with long-term health conditions in the work environment (which the government believes could apply where workers are experiencing menopause symptoms).
In October 2023, the government published a policy paper providing an update on the work of the Menopause Employment Champion and highlighting guidance for employers. Separately, an all-party Parliamentary group published a Manifesto for Menopause calling on all political parties to commit to seven reforms before the next election including:
- Requiring employers with over 250 employees to introduce menopause action plans to support employees experiencing the menopause.
- Providing specific guidance to SMEs to support employees going through the menopause.
- Introducing tax incentives to encourage employers to integrate menopause into occupational health.
The Labour Party has already promised that, if elected, it would introduce guidance for small businesses to support employees experiencing the menopause and requiring employers with over 250 employees to publish a "menopause action plan".
Relevant guidance
If not doing so already, employers should be thinking about how best to support employees experiencing menopausal symptoms and the initiatives that can be implemented. Acas Guidance is a good starting point, covering (i) the training of managers; (ii) carrying out health and safety checks; (iii) developing a menopause policy; (iv) managing sickness absence and job performance; and (v) appointing menopause and wellbeing champions.
A recent survey of 2,000 workers revealed some further helpful adjustments for dealing with symptoms of menopause at work that employers may consider. These include, where possible, ensuring workers have access to:
- Fresh air
- Comfortable desk seating
- Natural light
- A private room
- Temperature-controlled spaces
- More focus rooms with fewer distractions
In certain instances, individuals struggling with their symptoms may request adjustments which are more difficult to accommodate. Employers should deal with these on a case-by-case basis and consider whether it is necessary to take medical advice and to direct the employee to other relevant policies (for example, the sickness absence policy or flexible working policy). Taking appropriate legal advice at an early stage is also important to ensure that employees are supported in a positive way.
