The Minister for Employment has recently called for employers to strengthen their support for employees going through the menopause.
This follows on from a survey which found that the menopause adversely affected 60% of women’s careers, and caused almost 900,000 women to leave their jobs as a result of the severity of their symptoms.
With almost four million women aged 45-55 working in the UK, the vast misunderstandings and ill-treatment of menopausal employees can mean that employers are not only at risk of litigation, but also at risk of losing members of staff who are often at the peak of their skills and experience.
To combat this, the Government is calling upon employers to use a network of advisors known as the “50 PLUS Champions”.
This group provides support to employers to help educate them on the impact of the menopause and other, age-related, conditions, to help them retain employees over the age of 50.
As discussions about the menopause have thankfully become more open, it is clear that those who have suffered in the workplace are increasingly willing to issue an Employment Tribunal claim. A report by the Menopause Experts Group has found that the number of claims citing the menopause has increased from five in 2018 to 16 in 2020, with 10 already being heard in the first half of 2021.
This shows that there is a very real and increasing risk of litigation for employers who fail to understand the impact that the menopause has on a large proportion of their workforce.
We explore below the types of claim which employees could issue in relation to the menopause.
Whilst the menopause is not specifically protected under the Equality Act 2010, the menopause can generate discrimination claims in relation to four of the protected characteristics: disability, age, sex, and gender reassignment.
Employers are prevented from treating an employee unfairly as a result of them having one or more of these characteristics (direct discrimination); or actioning any policy or procedure that is likely to impact an employee with these characteristics more than another employee (indirect discrimination).
A disability is defined as a physical or mental impairment that has a substantial (more than minor or trivial) and long-term (at least 12 months) negative affect on someone’s ability to carry out normal day-to-day activities.
Employment Tribunals have previously found that severe menopausal symptoms, including cystitis, frequent hot flushes and sweat-induced insomnia, were sufficient to make an affected employee “disabled”, although much will depend in each case on the severity of the symptoms, and how long they last.
If an employer becomes aware (or it is reasonable to assume that it should have been aware) of an employee’s disability, it has a duty to make reasonable adjustments to that employee’s workplace to help them cope with their symptoms and make for a safer working environment. This can include: changing sickness policies, or even introducing specific menopause policies; implementing flexible working routines; and making physical adjustments such as the provision of fans.
The menopause is usually linked to a certain age group. Therefore it is possible that any actions or policies implemented that effect someone within this age bracket less favourably could amount to age discrimination. This could include an employer not hiring women close to or within this age group because it fears that they may soon experience menopausal symptoms that could impact their performance at work.
With one percent of women experiencing the menopause before the age of 40, it is vital for employers to remember that age discrimination can effect younger persons too. This could include making jokes that someone is too young to be experiencing the menopause, or implying that they are lying about their symptoms due to their age.
Treating an employee unfairly because of their sex may amount to discrimination. This can include treating a woman less favourably than their male counterpart because they take more frequent breaks to seek relief from their menopausal symptoms.
A person is protected from discrimination against gender reassignment if they are planning to, are currently or have already undertaken any procedures to reassign their sex. Therefore employers need to be careful not to make assumptions or treat those with this protected characteristic unfairly if they state that they are experiencing menopausal symptoms.
This will occur where an employee is made to feel humiliated, offended or degraded (whether or not the alleged harasser intended the employee to feel that way).
An employer will usually only be able to avoid a claim under this ground if it shows that it did everything it could do to prevent its workers from behaving in that manner.
An employer could help prevent such claims by introducing menopause-related policies, and educating its workforce.
If an employee considers themselves to have been treated so unfairly that they no longer see how the employment relationship can continue, they can resign and bring a claim for constructive unfair dismissal.
Employment Tribunal cases have shown that being made the subject of constant jokes and demeaning or humiliating treatment may be sufficient to allow an employee to bring such a claim.
A failure to manage menopausal employees constructively can create poor employee relationships, can lead to a loss of talent and experience, and expensive Employment Tribunal claims. Case law has shown that awards can easily exceed £10,000.
All employers should seek legal advice to help make sure that they are not discriminating against menopausal employees, and that they have in place some supportive policies, which are applied.
Whilst the government scheme focuses on advice for workers over the age of 50, it is clear that the menopause can impact many employees under this age and assumptions cannot be made.
By obtaining advice at an early stage, and having regular conversations with their employees, employers can help everyone understand the impact of the menopause, and create a safer and more pleasant working environment.
If you would like more information on this article please contact Charles Pallot in our Employment team.
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