19th October 2021

Menopause and the Workplace: Are Employers Aware of the Issues?

This month, which is World Menopause Awareness Month, The Women and Equalities Committee will begin the process of reading through the submissions they invited from the public to help them better understand the extent of discrimination faced and how Government policy and workplace policies can better support those experiencing menopause.

What are the issues?

In 2019, research carried out by CIPD highlighted that of those who experienced menopausal symptoms at work (and there are 3.5 million women over 50 alone in the workplace):

  • 65% have trouble concentrating;
  • 58% experienced more stress; and
  • 52% struggled to be patient with clients and colleagues.

Only 25% felt able to explain their symptoms, and the reason for them, to their managers, 32% citing unsupportive management as the reason why they could not. 30% surveyed said they had taken sick leave because of their symptoms but again, only 25% felt able to tell their manager the real reason for their absence.

An example of things going wrong in the workplace

Menopause remains a taboo subject in the workplace or, worse, a laughing matter. Consider the following common scenario:

Laureen has had another night of disturbed sleep. She rushes to work and the stress of trying to get to work on time triggers a hot flush. Mark, sitting at the desk next to her, laughs and says, ‘we need to get you your own fire extinguisher. You’re a fire hazard!” Laureen is fatigued and just can’t come back with a quip as she normally would to try and deflect the attention away from her. Laureen finds it hard to concentrate for the rest of the day and the more she worries about not working quick enough, hard enough, or about the mistakes she might be making, the more frequent and intense her hot flushes. She is having palpitations and she is drenched in sweat. She’s too embarrassed to leave her desk, just in case anyone can see the sweat stains on her uniform, which in and of itself feels hot and restrictive. Despite her efforts not to draw attention to herself, she can see Mark looking at her and smirking. Towards the end of the day, Lauren’s line manager, Julie, calls her in to her office to inform her that she is being taken through the capability process because she is not hitting her targets. Lauren tries to explain how her menopause may be affecting her performance, but Julie is dismissive; she tells Laureen that she sailed through the menopause.  Lauren is upset and can’t face coming back to work. She is signed off her by her GP the next day.

What are the legal issues?

This one example highlights potential claims of sex, age and disability discrimination:

  • It can be direct sex discrimination not to consider whether menopausal symptoms are the reason for poor performance, when a condition that affected both sexes would not have been ignored in the same way.
  • It may be indirect sex discrimination to have a policy or practice of applying performance targets to menopausal workers who cannot then meet them because they are finding it difficult to concentrate as a symptom of the menopause.
  • Often (but not always) menopause is age-related and it may be direct age discrimination or harassment to target unfair treatment at workers because they are of a menopausal age. Similar to  the potential indirect sex discrimination claim, it may be indirect age discrimination to apply performance targets. It is also possible to  bring an age discrimination claim based on perception; a claim that the worker was treated unfairly because of a perception that they belong to the group most affected by the menopause.
  • Whether or not menopause amounts to a disability will depend on the worker’s particular circumstances; every person will experience menopause differently (there are over 30 recognised symptoms). However, Tribunals have accepted that serious symptoms and effects can constitute a disability. The duty to make reasonable adjustments could be triggered by a worker requiring menopause-related sickness absence or a review of performance through a capability process. The physical features of the workplace may also require some adjustment, for example providing cold drinking water and electronic fans. In addition, employers who issue a warning or dismiss a worker for poor performance without exploring whether there is an underlying cause could find themselves treating a worker unfavourably because of something arising in consequence of their disability and if unable to show that this is a proportionate means of achieving a legitimate aim, could face a claim of discrimination arising from disability
  • Workplace banter and jokes targeted at women can lead to claims for harassment relating to sex.

What should employers be doing?

Employers can do a lot to proactively support menopausal workers including the following actions:

  • Train line managers to understand the impact the menopause can have on work. Whilst some line managers may have their own experience, they must understand that every person’s experience and therefore needs are different. They must also understand that talking respectfully about the menopause will encourage workers to come forward and speak honestly about any issues they may be experiencing at work.
  • Review sickness absence and capability procedure to ensure they are sufficiently flexible to cater for menopause-related sickness absences and performance issues.
  • Adopt a menopause policy that directs workers to support that is available to them.
  • Ensure workplace risk assessments consider the specific needs of menopausal workers, highlighting any physical adjustments that may be required.

Encouraging transparency and discussion about the menopause in the workplace can help those affected, potentially reducing the risk of, among other things, poor morale, poor performance, sickness absences and Tribunal claims.

If you need any advice with Menopause and the Workplace, please get in touch with Blackadders’ Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
Employment Law
Blackadders LLP
@EmpLawyerDonna

www.blackadders.co.uk 

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