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What claims might arise from Menopause Issues in the Workplace?

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What claims might arise from Menopause Issues in the Workplace?

Chris Dobbs from our Employment Team looks at some topical cases regarding discrimination against menopausal women.

Chis provides advice for employers in dealing with menopause in the workplace and discusses how to avoid potential claims.

Why is this such a topical issue?

The menopause has been a growing area of conversation for some time but it is only in recent years that there has been a noticeable increase in the number of Tribunal claims which cite matters concerning the menopause.

At a simple level, this is very likely to be in part due to the increased eligibility of women of menopausal age to bring a claim.

Approximately 80% of women experiencing the menopause are in work, and menopausal women are the fastest-growing workplace demographic.

This means that the issue is not only more current but also more visible.

Changing roles of women

Women of this age are increasingly in permanent and senior positions due to the changing role of women in the workplace over the last few decades.

This not only means they are more likely to be eligible to bring a claim but may be more motivated to do so.

Women in the workplace is of course an ongoing conversation with the topic moving back to the forefront of the wake of both the Me Too movement and high-profile equal pay claims.

What claims might arise from Menopause Issues in the Workplace?

As a result of increased awareness and exposure to these issues, Tribunal claims have been issued where the menopause is cited either as the reason or background in:

  • Unfair (including constructive) dismissal
  • Sex discrimination
  • Disability discrimination
  • Age discrimination

Of these, age is by far the most problematic as there is not a set age bracket for which women will experience the menopause.

Age claims are often weaker as direct discrimination in age claims is unique in being justifiable in law.

Sex claims are much more obvious for the symptoms of a condition experienced exclusively by women. Indeed, failing to deal with the effects of the menopause was held to be sex discrimination in 2012 in the case of Merchant V BT plc.

Is menopause a disability under the Equality Act?

In order to be a disability a law, the Claimant must show that their condition satisfies the tests set out in section 6 of the Equality Act 2010.

This states that there must be a physical or mental impairment which has a substantial and long-term adverse effect on the claimant’s ability to carry out normal day-to-day activities.

In the case of the menopause it is often the case that the combined effects and symptoms as treated tougher may amount to a disability.

Many women experience different symptoms to different degrees but when separated from the title of ‘menopause’, it is easier to see why some of the most common symptoms may start to meet the criteria:

  • Headaches
  • Poor sleeping pattern
  • A lack of focus or concentration
  • Low mood

Can the Menopause be a disability? 

The question of disability was first tested in 2018 in the case of Davies v Scottish Courts and Tribunals.

Importantly, disability was agreed in this case between the parties due to the severity of Ms Davies’s symptoms however it is important to note that the judgment states that “The claimant’s conditions amounted to a disability”.

One reading of this is that the menopause is not necessarily, by itself, a disability but rather the symptoms or related conditions may meet the criteria.

‘Symptoms of the menopause’ and disability

Similarly, in the 2019 case of Daley v Optiva, the judge confirmed again that the Claimant could be disabled by reason of “symptoms of the menopause” alongside or instead of an alternative condition.

It is clear therefore that the symptoms of the menopause can amount to a disability in law and that tribunals are prepared to make this finding.

That being the case, employers need to be aware of how they manage menopausal women, their symptoms and especially so where those symptoms are severe enough to meet the disability criteria.

Menopause: Duties of Employers and potential claims

Where both sex and disability are concerned, employers should be careful not to directly discriminate.

A dismissal because an individual is menopausal or because of the symptoms of their menopause may amount to direct discrimination on either basis.

Discrimination arising from a disability under s15 of the Equality Act is also a potential claim.

These will arise where an employer acts in a detrimental way towards a menopausal member of staff due to something connected with one of the symptoms.

Over-zealous use of the sickness absence procedure or disciplinary steps taken for acts attributable to a symptom or side-effect of mediation may also give rise to a claim.

Making work adjustments to manage the menopause

Finally, where a condition is capable of being a disability, it gives rise to a duty on employers to make reasonable workplace adjustments.

These adjustments should be sufficient to allow the employee to overcome any disadvantage caused by the disability but must be reasonable for the employer to implement.

Flexibility with working hours, the ability to take breaks, providing low-cost equipment or physically relocating someone within a workplace are all likely to be deemed reasonable for the majority of employers.

Should Occupational Health be involved?

If an OH report would be your standard practice in any case where a condition which may amount to a disability impacts on an individual’s work then, yes, there is no reason to treat menopause symptoms which may amount to a disability any differently.

However, while OH or medical reports can be incredibly useful, they do not change the fact that the obligation is on the employer to make a decision about the workplace.

This is probably a disproportionate response for a women suffering relatively minor effects for a short period of time.

Menopause in the workplace: Advice for Employers

As always, the most important thing in a potential workplace issue is to communicate with staff.

The menopause is being increasingly discussed openly which is, for the most part, a good thing.

However, do bear in mind that there are limits to the suitability of workplace discussion and while many members of staff will be happy to discuss their situation in general terms or with friends, other may be less comfortable.

A good balance of openness and discretion is appropriate in most situations concerning things which staff might consider personal.

Employer support

Staff need to feel able and comfortable to speak to managers if something is affecting their work and managers needs to have the confidence to discuss any issues without the fear of saying the wrong thing or creating an uncomfortable situation.

The kind of support available should be made clear so that staff know what they may have access to internally and can also be signposted to other resources.

Employers may want to consider the kind of support they can offer almost ‘as standard’ but should keep in mind that individual staff members experiencing more severe effects may require additional support.

An Employment Solicitor’s View

Employment Solicitor Chris Dobbs said: “The menopause is a biological fact for at least half the population and despite having existed throughout human history, it is something we are only recently starting to feel able to talk about.

For the majority, the effects are relatively minor on a daily basis and a combination of understanding, awareness and some small but key changes to the workplace and expectations should help.

But, a sizeable percentage of menopausal women do experience severe symptoms. In those cases especially, it is important to remember that there are both physical and psychological effects which may require additional support.

There is an increasing amount of educational and informative content available. As something which has historically been so rarely discussed, the most helpful thing the majority can do is educate themselves on the menopause before seeking to address the workplace effects.”