Menopause in the workplace
For decades, if not centuries, menopause was often an experience women battled through alone.
Now menopause is discussed openly and is highlighted by policy makers, employers, trade unions, public personalities and civil society as an issue requiring particular attention.
This shift in societal perception is welcome. In the workplace, three out of five women experiencing the menopause say it has a negative impact upon them at work, and nearly a third of women say they have taken sick leave because of menopausal symptoms. One survey even uncovered that one in four women considered leaving their jobs because of their symptoms. As the experience of menopause is a workplace issue, it must be a trade union issue too.
Although there has been some debate on whether menopause ought to be a stand-alone protected characteristic in terms of the Equality Act, that change has not yet taken place. Instead, menopausal women have had to argue that unfair treatment was discriminatory on the ground of sex, age, or disability.
Menopause and disability discrimination
Of course, each case turns on its own facts and circumstances. A tribunal will therefore apply the relevant legal tests on a case-by-case basis. The symptoms of the menopause can include headaches, joint pain, migraines, hot flushes, memory loss, brain fog, and depression, among many others.
The test for disability status under the Equality Act provides that a person has a disability if they have a physical or mental impairment that substantially and adversely affects their ability to carry out day-to-day activities on a long-term basis. Long-term means that it has lasted or is likely to last 12 months or more. Crucially, the employer must have knowledge of that disability.
Clearly, this does not mean that every woman who is going through the menopause would be considered disabled under the Equality Act, and the application of the test can be seen in the divergent decisions made in Rose v Commissioner of Police for the Metropolis ET Case No.3203055/19 and Donnachie v Telent Technology Services Ltd ET Case No.1300005/20, respectively.
In short, if the woman’s experience of the menopause satisfies the definition of disability, then the employer may be under a duty to make reasonable adjustments to that workplace and she may be protected from unlawful discrimination as a result.
Menopause and sex discrimination
A limited number of cases have considered whether an employer’s treatment of menopausal women has given rise to a claim for indirect sex discrimination.
In Sokolova v Humdinger Ltd ET Case No.1805866/20, the claimant worked in a hot factory handling food products. She and her colleagues were required to wear a uniform buttoned up to the neck to prevent food contamination. The claimant in the case suffered from hot flushes and dizziness and was reprimanded by a line manager when she undid her top button to alleviate her discomfort. Although the tribunal accepted that women going through the menopause would be at a particular disadvantage in comparison to men, it held that the treatment was objectively justified. It found that not practicable for the employer to disapply the requirement to wear the uniform fully buttoned and continue the process of packing the foodstuffs safely. The claim was hence dismissed.
Menopause and age discrimination
The claimant in A v Bonmarche Ltd ET Case No.4107766/19 raised a complaint of age and sex harassment, after her line manager began to humiliate her in front of younger staff after she began to experience menopausal symptoms. The manager unfairly criticised her and said her poor performance was because she was menopausal and called her a “dinosaur”. The tribunal found that the comments regarding A’s menopause were clearly related to her sex and age and upheld her claims for sex and age harassment.
Conclusion
As public awareness of the menopause increases, there will be undoubtably be more claims raised by women experiencing the menopause raised in the Tribunal. Indeed, in 2021, the number of cases raised in the Employment Tribunal citing menopause rose by 44%. Given this rise, trade unions ought to be alert to the needs of menopausal women and assist them where possible in articulating their rights in the workplace.
If you require any advice regarding menopause in the workplace, please do not hesitate to contact our approachable, expert employment law team.
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