What is menopause?
Menopause is a natural stage of a woman’s life where menstrual periods stop permanently. For many women, the menopause can be a difficult and stressful time, and each person can experience symptoms differently.
Usually, menopause will occur between the ages of 45 – 55, however employers should be aware that menopause can occur earlier and later. For most people, symptoms of menopause usually last approximately 12 months, but many experience perimenopause (which occurs before menopause as the person’s body prepares itself for menopause) and post-menopause (which occurs after menopause where individuals continue to experience symptoms).
Common symptoms of menopause include, but are not limited to: fatigue, decreased concentration, low mood and/or anxiety, difficulty sleeping, hot flushes and headaches.
Menopause can affect anybody with a menstrual cycle, including women, transgender and non-binary people and intersex people. Therefore, it is not always obvious who may be experiencing menopause symptoms.
Can individuals raise claims for discrimination?
Menopause is not, in itself, a ‘protected characteristic’ pursuant to the Equality Act 2010 (the ’Act’), however, individuals could raise discrimination claims relating to menopause based on the protected characteristics of disability, sex and age, for example.
Discrimination claims relating to menopause can be complicated and often include more than one protected characteristic (i.e. age and sex). There is no cap on the compensation that can be awarded for discrimination claims relating to menopause, so the complexity of such cases means the award has the potential to be substantial.
Individuals have the potential to bring the following discrimination claims related to disability, sex and/or age where they are going through, or are perceived to be going through, the menopause:
- direct discrimination (the individual is treated less favourably or put at a disadvantage);
- indirect discrimination (a provision, criterion or practice that applies to a whole workforce puts the individual at a disadvantage);
- harassment (the individual is subject to unwanted conduct that has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment);
- victimisation (the individual suffers a detriment as a result of bringing proceedings under the Act, giving evidence or information in connection with the proceedings, making an allegation that the Act has been contravened and/or doing any other thing in connection with the Act); and
- in relation to disability discrimination only:
- failure to make reasonable adjustments (the employer does not make adjustments for the individual to try and remove or reduce the disadvantage related to a disability); and
- discrimination arising from disability (the individual is treated less favourably because of something that results from their disability, rather than because of the disability itself).
Disability
To claim disability discrimination, the individual must show that they meet the definition of ‘disability’ under the Act; where a person has ‘a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on [their] ability to carry out normal day-to-day activities’.
Menopausal symptoms have the ability to be physical (i.e. hot flushes and trouble sleeping) and/or mental (i.e. anxiety and depression).
Where menopausal symptoms have a significant impact on a person’s ability to carry out day to day tasks (i.e. eating and sleeping) for 12 months or longer, the definition of disability may be met. However, in many instances (and often in practice) it is difficult to satisfy the definition as symptoms can be mild, temporary and intermittent across the period.
Where the definition of disability is met, individuals will have protection from being discriminated against. For example, if an individual is dismissed for performance issues but their poor performance is a result of their menopausal symptoms, they would have the potential to claim discrimination related to disability.
In addition, employers are under a duty to make reasonable adjustments pursuant to the Act in order to reduce and/or remove as far as possible any disadvantage the individual may be subject to. What adjustments are considered ‘reasonable’ will depend on the nature of the job and specific circumstances, but common includes offering flexible working hours, remote working, frequent rest breaks and workload adjustments.
Sex
Where the definition for disability is not met, individuals may still have a claim for sex discrimination due to the sex-specific nature of menopause in that it relates to those who have a menstrual cycle, predominantly women. This means that women who are treated less favourably or suffer a disadvantage related to menopause may have a sex discrimination claim.
For example, if a woman is not selected for promotion and it is found that the reason related to a symptom of her menopause (i.e. because she works remotely more often than her male colleagues due to back pain caused by menopause), she may be able to bring a discrimination claim on the grounds of sex.
Age
As it is most common for individuals to be in between the ages of 45 – 55 years when experiencing menopause, discrimination issues can arise where those who are of menopausal age are treated less favourably than, or put at a detriment to, those who are not in this age range. For example, in the case of A v Bonmarche Ltd (in administration) comments directed towards the claimant who was a women of menopausal age that she was 'a dinosaur' and that her poor performance was related to her menopause were held to amount to direct age discrimination and harassment.
Unfair dismissal
Employees with 2 years or more service have the right not the be unfairly dismissed. The reason for dismissal must be for one of the following fair reasons: conduct, capabilities or qualifications, redundancy, statutory restriction or some other substantial reason. In any event, the employer must always act reasonably in dismissing the employee.
Conduct
Where a menopausal employee is being considered for dismissal for reasons related to their conduct and they suggest that their behaviour is a result of their menopause, employers need to take extra care in investigating and considering the dismissal. If the employer can show that the employee would have still been dismissed if they did not have menopause, the dismissal is likely to be fair. However, an employer is only likely to be able to show this in gross misconduct cases.
In misconduct cases, if the dismissal is found to be unfair due to the employers failure to consider menopause, the employer may have the ability to reduce compensation through:
- a Polkey deduction (where the dismissal would have occurred anyway even if a different procedure had been followed); and/or
- contributory fault (where the dismissal was, to any extent, caused by the employee).
Capability
Where a menopausal employee is dismissed due to their poor performance and suggests that their performance is menopausal-related, it is possible that the employee will have an unfair dismissal claim. Therefore, employers should carefully consider to what extent, if at all, an employees’ menopausal symptoms are affecting their performance. This may involve referring the employee for medical investigation to establish if there is a link between the poor performance and menopause.
As above, the same deductions (Polkey and contributory fault) apply to capability dismissals.
Proposals
As a welcome result of the increasing awareness and discussion about menopause, it is not surprising that the Labour government discussed it in its manifesto stating:
“Our Plan to Make Work Pay will transform the lives of working women, including by strengthening rights to equal pay and protections from maternity and menopause discrimination and sexual harassment."
The new Employment Rights Bill encompasses supporting employees going through the menopause as part of the equality action plans. The Government’s ‘Plan to Make Work Pay’ provides that large employers (250 or more employees) will be required to produce menopause action plans. This would include an obligation to set out measures for employers to consider in relation to uniform, temperature, flexible working and recording methods for menopause-related leave and absence.
Consequently, it is important employers take a proactive approach to understanding the effect of menopause and actively seek to promote awareness within its business operations.
Below are some of the ways employers can do this.
Actions for employers
- Training sessions with all staff to promote awareness as a business collectively;
- implement a menopause policy;
- risk assess aspects of the working environment that are most likely to adversely affect menopausal symptoms;
- have open conversations with women who are experiencing symptoms of menopause to discuss the support that the company can provide;
- appoint a menopause champion; and
- make clear the support and adjustments that are available and open a forum for new ideas and/or suggestions from staff as to how the business can help.
