Menopause: the last taboo in the workplace?

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In May 2018 the deputy governor of the Bank of England used the word “menopausal” to describe the country’s sluggish economy. While it was good to read the backlash and  criticism of his choice of language (and an apology from him), it is clear that we have a long way to go.

We need to talk openly about the fact that seven out of ten women of menopausal age are in work in the UK. The average age of menopause is 51 and the often challenging “transition” stage can start several years earlier. Women of course encounter the transition with varying degrees of impact.

The lack of research means that evidence is limited, but the number of women negatively affected by transition symptoms at work appears to vary from 10% to 53%. Some of the recent research claims that women experience difficulty looking for work or reducing their working hours during transition and that some women consider their careers are affected or claim to have lost their jobs as a result (see Government Equalities Office: Menopause transition: effect on women’s economic participation (20 July 2017), pages 25 and 29).

Any negative consequences in the workplace due to transition are clearly unacceptable. Aside from the legal ramifications, it is a total waste of talent to lose any of our workforce due to transition. We are trying to close the gender pay gap and can only do that if mid-aged women remain in the workplace.

What does the law say?

There is a duty to protect the health and wellbeing of your workforce and not to behave in a way which may undermine the implied duty of trust and confidence.

The case law on menopause transition in the UK is limited to two non-binding cases (possibly because the remainder have been settled). The first case found direct sex discrimination. The second case held that the conditions of transition amounted to a disability and the claimant successfully argued disability related discrimination:

  • Sex discrimination. In Merchant vs BT plc ET/1401305/11, Ms Merchant was dismissed following a final warning for poor performance. She had previously given her manager a letter from her doctor explaining that she was “going through the menopause which can affect her level of concentration at times”. The manager chose not to carry out any further investigations of her symptoms, in breach of BT’s performance management policy. The tribunal upheld her claims of direct sex discrimination and unfair dismissal and held that the manager would never have adopted “this bizarre and irrational approach with other non-female-related conditions”. The manager also wrongly decided (as many women in the workplace face on a regular basis in terms of their pregnancy and their flexible working requests) that his wife’s experience was apparently relevant evidence for his employees.
  • Disability discrimination. In Davies v Scottish Courts and Tribunals Service S/4104575/2017, Ms Davies was found to have been unfairly dismissed and reinstated to her role with back pay and injury to feelings compensation. The judge found that she had been dismissed “because of something arising in consequence of her disability” (in terms of section 15 of the Equality Act 2010). She suffered from transition symptoms which included heavy bleeding (requiring her at times to work near a bathroom as she needed to change her sanitary towel every 30 minutes) as well as stress, memory loss and other symptoms. Her employer managed the requisite reasonable adjustments well. However, she could not recall if her tablets had been placed in a jug and there was a risk that two male colleagues had drunk from that jug. She was accused of lying, bringing the court into disrepute and dismissed. It was held that her employer had failed to protect her when, during the course of its investigating and in making the decision to dismiss, it did not consider that her “conduct was affected by her disability” (paragraph 141). Her memory loss and confusion were in fact caused by her disability (which was in turn the result of her transition).

Possible future claims

In addition to the above unfair dismissal, direct sex discrimination and disability related discrimination, the other types of claims that could arise as a result of treatment of a woman in transition include:

  • Indirect sex and disability discrimination if, for example, a uniform policy is inconsistent with the need for cooling clothes or hiding sweat patches.
  • Sex, disability and age-related harassment if she is subjected to unwanted conduct which violates her dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for her.
  • Victimisation if she complains about sex, age or disability discrimination and is treated less favourably as a result.
  • Failure to make reasonable adjustments to the workplace (if her conditions amount to a disability). Steps that an employer might consider include flexible working, later starts to manage insomnia, access to cold water and ventilation and managing symptoms such as memory loss.

All of the above claims can be hugely time-consuming, expensive to defend and damaging for the employer’s reputation.

What can employers do?

I believe we will see an increasing number of successful claims from women going through transition unless and until:

  • We educate men and women in the workforce about menopause. This could be carried out through:
    • training on health and wellbeing for which health and safety officers have a key part to play;
    • initiating occupational health campaigns;
    • training managers and discussing the topic at management meetings; and
    • expressly mentioning transition in diversity and equality training sessions.
  • We have informal support at work for mid-aged women (such as workplace networks, online support groups and helpline numbers).
  • Employers live and breathe a fair sickness absence policy which accommodates women experiencing transition.
  • Employers improve the working environment including access to fans, good ventilation, the ability to control temperature, having clean and comfortable toilet facilities near work stations with appropriate sanitary disposal bins and feminine hygiene products and also have access to female-only showers if possible.

What else can be done?

The onus should not be placed entirely on the employer’s shoulders and the recent government commissioned research suggests that:

  • Medical and social care professionals need to be more sympathetic, knowledgeable and supportive about transition.
  • The Health and Safety Executive (and perhaps ACAS) should provide advice to employers and employees.
  • The government should lead by example in its internal policies and procedures.

There is a distinct lack of evidence quantifying the cost (if any) of transition on women’s economic participation in the UK. I believe the government should invest the requisite time and funds into such research to ensure we are better informed.

Keystone Law Emma Clark

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