Under UK employment law, people suffering from a chronic illness or disability are safeguarded in the workplace, but should those experiencing menopause be afforded the same protection?

Menopause, which typically affects women between the ages of 45 and 55, causes a range of physical and/or psychological symptoms such as hot flushes, sleep disruption, headaches, fatigue, depression, anxiety and poor concentration. Considering menopausal symptoms can last for up to 10 years, it is vital sufferers are supported in the workplace.

How can menopause affect the workplace?

In a survey conducted by BUPA and the Chartered Institute for Personnel and Development (CIPD) in 2019, it was found that three in five women experiencing menopause were negatively affected at work due to the severity of their symptoms. The survey concluded that almost 900,000 women in the UK left their jobs over an undefined period of time due to the effects of menopausal symptoms. This means experienced women are leaving the workforce, which lessens diversity at executive level and further widens the gender pay gap.

With the retirement age now at 68, today’s ageing workforce means more employees are working through menopause than ever before. According to the Government Report on Menopause, menopausal women are the fastest-growing workforce demographic in the UK. Because of this, there have been calls for employers and the government to recognise the challenges faced by employees experiencing menopause.

In 2021, the House of Commons Women and Equalities Committee launched an inquiry into workplace issues surrounding menopause and to establish whether any specific legislation is needed. The inquiry, which closed in September last year, examined workplace practices and whether enough is being done to support employees with menopause. At the committee’s third evidence session on 19 January 2022, employment lawyers told MPs that businesses lack clarity over their obligations to those going through menopause. It was also suggested that menopause should be legally protected under employment law, potentially as a protected characteristic under the Equality Act 2010. We await the committee’s findings on this matter.

Is there legal protection?

Currently, there is no legislation specifically relating to menopause. However, under the Equality Act 2010, menopause discrimination may be covered under three protected characteristics: age, sex, and disability discrimination. Furthermore, the Health and Safety at Work Act 1974 provides for safe working conditions. This protection can extend to staff experiencing menopause whose health concerns are not being appropriately managed by their employer.

While the menopause can potentially be seen as a disability under section 6 of the Equality Act due to its long-term and detrimental impact on a person’s capacity to undertake day-to-day activities, it is more likely that tribunal claims will be made for sex discrimination. These claims are often specifically concerned with the unfair treatment of a person due to their gender and the health issues related to that gender.

In the recent Employment Appeal Tribunal decision of Rooney v Leicester City Council, it was found that an employment tribunal had wrongly decided that the claimant, who had debilitating menopausal symptoms, was not disabled. The case highlights the difficulty in raising cases under the existing legislative framework and serves as a reminder that more can be done to raise and demonstrate understanding and awareness of the issue.

Over the past couple of years, there has been a steady increase in the number of employment tribunal claims where the claimant has noted menopause as the reason for their grievance. There were 16 claims in 2020 compared to just six in 2019, and 10 claims in the first six months of 2021 alone. Should the findings in the House of Commons inquiry be favourable to supporting those experiencing menopause, we may see even more claims in 2022.

What can employers do to help employees experiencing menopause?

Taking steps to support employees can help protect employees from potential claims in an employment tribunal. Acas suggest several strategies that employers may want to follow to facilitate a supportive working environment for employees experiencing menopause.

1. Awareness: by educating the workplace through training sessions and events, employees will understand the symptoms and effects of menopause. This will enable managers to deal with menopause issues sensitively and fairly. In turn, employees may gain more confidence to talk to their managers about these issues.
2. Menopause champions: having a dedicated menopause champion in the workplace as a point of contact for those affected by menopause may put these individuals at ease if they are not comfortable talking to their managers at first instance.
3. Menopause policy: developing and implementing a menopause policy can reassure employees that there is support available by providing an overview of reasonable workplace adjustments that could be made. A policy will also encourage open communication between employees and managers.
4. Risk assessments: as explained above, employers are responsible for the health and safety of all staff under the Health and Safety at Work Act 1974. Employers must carry out regular risk assessments to ensure that their employees’ working environments remain safe and healthy. For staff experiencing menopausal symptoms, this could include the temperature and ventilation of the workplace.

Article written by Charlie Thompson and Grace Horvarth-Franco for www.stewartslaw.com