World Menopause Day takes place on 18 October 2022. This is an opportunity to raise awareness on issues around menopause and for employers to consider how they can better support menopausal women at work.
Women over the age of 50 are the fastest growing demographic in the workforce, with many holding senior roles and bringing years of valuable skills and experience to the workplace. Despite menopause being a natural part of the ageing process which 51% of the population will experience, there is still a general lack of awareness and understanding around this issue, leaving many women being forced out of work.
Although the menopause itself is not yet recognised as a ‘protected characteristic’ under the Equality Act, the number of Employment Tribunal cases citing the menopause increased by 44% in 2021, compared to 2020. When bringing claims in the Employment Tribunal as a result of the menopause, employees can rely on other ‘protected characteristics’ such as sex, disability, age and gender reassignment.
The menopause can produce a number of debilitating symptoms including hot flushes, fatigue, headaches, brain fog, memory loss, confusion, anxiety and depression and many women will rely on the protected characteristic of disability when bringing claims. In order to be recognised as a disability in law, a condition needs to be ‘a physical or mental impairment which has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities’. As each individual will suffer from different menopausal symptoms to a varying extent, the Employment Tribunal will need to consider whether the menopause meets the definition of a disability on a case by case basis.
The following cases provide examples of how the Employment Tribunal deals with issues around the menopause:
- In the case of Donnachie v Telent Technology Services Ltd, the Tribunal ruled that the Claimant’s symptoms of hot flushes, night sweats and anxiety meant that she was disabled in law and therefore had protection from discrimination at work. The Judge found “no reason why, in principle, ‘typical’ menopausal symptoms cannot have the relevant disabling effect on an individual”.
- In the case of Ms Mandy Davies v Scottish Courts and Tribunals Service, following Ms Davies’ dismissal for misconduct, the Tribunal found that her menopausal symptoms amounted to a disability in the particular circumstances where the Claimant “gets anxious and upset, suffers short term memory loss and becomes confused, bleeds heavily and needs to attend the toilet frequently to change sanitary protection; and becomes weak, dizzy and disorientated because of anaemia”.
- In the case of Rooney v Leicester City Council, the original Tribunal found that the Claimant’s menopausal symptoms of insomnia, fatigue, depression and memory loss, which led to her forgetting to attend meetings and appointments, did not meet the definition of disability for the purposes of the Equality Act on the basis that her impairment was not long-standing and did not have a substantial effect on her day-to-day activities. The Employment Appeal Tribunal disagreed and concluded that the Claimant’s symptoms did have a significant impact and that they had lasted or were likely to last longer than 12 months and she was therefore protected under the Equality Act.
Menopause issues in the workplace can create a significant litigation and reputational risk to employers. Compensation for discrimination is uncapped meaning financial awards in successful cases can be significant.
It is important that employers gain a better understanding of the menopause and consider steps they can take to support employees, such as ensuring that managers are trained to recognise the signs and symptoms of menopause and deal with issues sensitively. It is also recommended that employers put in place a Menopause Policy to encourage open communication and provide appropriate support to employees.
For further advice on how best to support your staff going through the menopause, or if you require assistance in training managers and introducing a menopause policy, please contact our specialist employment team on 0345 646 0406 or fill in our online enquiry form to discuss this further.