In my previous blog on menopause in the workplace, I mentioned that I’d never been asked to advise anyone on the subject. So is there any law that might be relevant, you may ask. Yes indeed!
On the basis that menopause is a medical condition which only affects women – and usually only women aged between 45 and 60 (unless a woman goes through a clinical early menopause) – the obvious employment law risks to consider are age, sex and/or disability discrimination and also unfair dismissal. Claims by woman experiencing the menopause of receiving poor treatment in the workplace are foreseeable in all these areas.
There is of course a spectrum of menopausal symptoms with, at the very severe end, women suffering quite debilitating symptoms. For menopause to be considered a disability under the Equality Act it must of course amount to a ‘physical or mental impairment which has a substantial and long term adverse effect on the person’s ability to carry out day to day activities’. Clearly, those with strong symptoms could well qualify as being disabled.
Little reported so far
As I mentioned in my last blog, there is only limited case law in this area at the moment and nothing in the appeal courts. This means that, whilst these cases are of interest, they are not binding on another Employment Tribunals. It is interesting that, with sex discrimination legislation being around for over 40 years, there is yet very limited judicial insight into this area that affects all women as they age. Perhaps there is a sense with women that this is either too embarrassing or that they will not get a favourable hearing from a male-dominated judiciary? Or perhaps there is a lack of knowledge that their symptoms and treatment by employers during the menopause are actually covered by employment legislation?
Given the much larger proportion of Employment Judges who are female nowadays, I don’t expect this likely to continue.
Two cases to consider
The two cases we have seen in the last few years were brought in different ways:
In Davies v the Scottish Court and Tribunal Service, the ET found that Mrs Davies was discriminated against because of her menopause. Mrs Davies had worked for SCTS for 20 years but was dismissed for gross misconduct in rather bizarre circumstances. She took the case to tribunal, claiming she was discriminated against on the grounds of disability due to her menopause. Whilst the reported details of this case are sketchy, the judge found that Mrs Davies’ severe menopause symptoms had amounted to a disability and that she had been discriminated against in respect of her disability by being dismissed. She was awarded compensation, including for ‘injury to feelings’ (which is only available in discrimination claims) and her employer was ordered to re-instate her. This case is currently subject to an appeal.
In Merchant v BT plc, Mrs Merchant was dismissed due to poor performance. The employer’s process demanded that there should be an investigation as to whether the under-performance was due to health factors. However, in spite of the employee presenting a note from her GP declaring her menopausal symptoms were adversely affecting her, the line manager chose not to investigate the possible impact of menopause. The tribunal upheld the employee’s claims, on the grounds that the manager would never have adopted “this bizarre and irrational approach” with other non-female-related conditions. They ruled that a man with comparable symptoms – which in this case was poor concentration – would not have been held accountable in the same way. In this case, her dismissal was found to be a case of sex discrimination.
Claims for either sex discrimination or age discrimination will be easier to present for women because they automatically have these characteristics. Claims under disability discrimination are less straight-forward, as all elements of the disability test will need to be met before the Tribunal will even consider the claim. Also, if a woman has not informed her employer that she is experiencing menopausal symptoms, she will also have to persuade the Tribunal that the employer ought to have known she was disabled. For these reasons it is perhaps understandable why there are so few cases in this area – although the risk of a disability claim relating to menopause should certainly not be discounted, especially if the women is experiencing severe menopausal symptoms.
Good employment practice
To support women in the workplace, my view is that good employers should consider the following:
- Introducing a clear menopause policy or guidance documents. This will inform leaders, line managers and employees of the company’s process for anyone needing support over menopausal issues.
- Providing adequate training for line managers to support this policy.
- Every woman experiences menopause differently, so it is not feasible to have a blanket set of rules. Therefore, assess each case on its own merits.
- Considering reasonable adjustments in the workplace. Following assessment, these could be include installing a desk fan or offering an extra uniform, but could also include considering flexible working, reallocating certain tasks, providing private rest areas, ensuring there is constant access to water and toilet facilities.
- Creating an open and transparent environment. Menopause is not often discussed, even by women, particularly in relation to the symptoms experienced. By creating a working environment in which employees and managers feel comfortable having open discussions, organisations will be taking steps to protect their staff and themselves.
- Working closely with occupational health specialists to identify any other reasonable adjustments that may make working life easier for menopausal women.
Because of the nature of the menopause, It is perhaps worth remembering that many of the reasonable adjustments requested may only be temporary, but will probably produce a lot of goodwill amongst female employees if they are put in place.
Long way to go
So there are my thoughts on where the law stands as regards employers, menopause and the law. I am confident that we will see it develop over the next few years and if you hear of any cases, I’d love to know.
Email Anne-Marie or call 0117 325 0924