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Over 50% of women with menopause symptoms are negatively affected by them at work. Many even leave their jobs as a result. Offering support can help you keep talented, experienced staff. It’s also a legal duty that can protect you from tribunal claims.

Rights in relation to the menopause

Although the Equality Act doesn’t specifically reference the menopause, anyone who’s discriminated against or harassed based on their experience of menopausal symptoms is protected by it in the following ways:

Disability discrimination

Menopausal symptoms can be classified as a disability if they amount to a physical or mental impairment that has a substantial and long-term effect (12 months+) on the person’s ability to do their normal day-to-day activities. An employee in this situation could potentially claim any of the following:

• Direct disability discrimination:
  When, because of their menopausal disability, their employer treats them less favourably than it treats (or would treat) non-sufferers.

• Indirect disability discrimination:
  When a ‘provision or criterion or practice’ puts them at a particular disadvantage compared to employees without the menopausal disability, and the employer can’t show that it’s a proportionate means of achieving a legitimate aim.

• Discrimination arising from disability:
  When they’re treated unfavourably because of something arising from their symptoms, and the employer can’t show that it’s a proportionate means of achieving a legitimate aim. However, the employer has a defence if they can show that they didn’t know, or couldn’t reasonably have been expected to know, that the employee had a menopause-related disability.

Constructive dismissal

A menopausal employee could claim constructive dismissal if they feel they have no choice but to resign, because, for example:

• they’re being bullied, harassed or discriminated against;
• their employer doesn’t give them the support they need to do their job; or
• their employer breaches their contract of employment in some other way, e.g. reducing their contractual benefits due to menopause-related absence.

Sex discrimination

• Direct sex discrimination:
  A woman could claim this if their employer treats their menopausal symptoms less favourably than the health conditions of male staff.

• Indirect sex discrimination:
  When a ‘provision or criterion or practice’ puts women at a particular disadvantage compared to male employees, and the employer can’t show that it’s a proportionate means of achieving a legitimate aim.

Age discrimination

• Direct age discrimination:
  Because the menopause generally only affects a particular age group, someone with menopause symptoms could claim this if they’re treated less favourably as a result. However, the employer can defend this if they can show that the unfavourable treatment is a proportionate means of achieving a legitimate aim.

• Indirect sex discrimination:
  When a ‘provision or criterion or practice’ puts women within the menopause age bracket at a particular disadvantage compared to younger employees, and the employer can’t show that it’s a proportionate means of achieving a legitimate aim.

Harassment

Someone suffering from menopause symptoms could claim this if their employer engages in unwanted behaviour towards them that has the purpose or effect of:

• Violating their dignity; or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for them.

Case 1 – Disparaging remarks can amount to harassment

An office manager successfully brought a tribunal claim of harassment against her employer after her boss dismissed her menopause-related health issues as mere ‘aches and pains’.

Her employer was aware of her menopause symptoms, which included anxiety, concentration loss and heavy bleeding, and had provided her with a private assessment.

However, upon her return to the office after a day of home working due to heavy menopausal bleeding, her boss reacted sarcastically, suggesting her symptoms were an excuse. He also questioned the number of days she took off that year.

She tried to explain her symptoms but her boss was again dismissive, saying ‘A biddy has aches and pains’.

Upset, she left the workplace and raised a grievance. Her doctor then signed her off work for 28 days.

On the same day, she discovered that her employer had cut her remote access, meaning she couldn’t work from home.

She then resigned and brought tribunal claims for unpaid wages, constructive dismissal and harassment on the basis of sex.

The tribunal found that her boss’s behaviour had amounted to sex-related harassment because:

• His comments violated her dignity and created a humiliating and degrading environment for her;
• He was aware of her difficulties with menopause-related symptoms; and
• The menopause is a condition that primarily affects women.

Case 2 – Menopause symptoms can amount to a disability

In a ground-breaking case, a tribunal recently ruled that an employee’s menopause symptoms amounted to a disability and that she’d been discriminated against as a result.

The woman had performed well in her role as a telesales consultant for the first 4 years of her employment. Then menopause symptoms, including mood swings, poor concentration and memory loss, began to affect her performance.

Her employer:

• Gave her a different customer-facing role, but later gave her a written warning after some difficult calls with customers.
• Graded her as ‘needing improvement’ during her annual appraisal and consequently denied her a pay rise.
• Withdrew her enhanced sick pay (although later reinstated it after she raised a grievance).

The woman eventually resigned and brought tribunal claims for unfair dismissal, disability, age and sex discrimination.

The tribunal upheld her disability discrimination claim and found that her employer had failed to make reasonable adjustments. It said:

• The employer should have reasonably known about her disability, as she’d advised her manager of her menopausal symptoms and treatment after a GP visit.
• Even though the employer had provided training and support and moved her to a less-challenging role, it should have done more to support her. A role that didn’t involve interaction with difficult customers should have been considered.
• Instead of the written warning, the employer should have considered referring her to occupational health earlier.
• The appraisal rating should have taken into account that she was performing to the best of her ability in light of her symptoms.

The tribunal found that both the written warning and the appraisal rating, along with the decision to withdraw her enhanced sick pay, amounted to discrimination arising from disability.
It awarded her £64,645 in compensation.

What this means for you

As an employer, you need to take proactive steps to support menopausal staff. Consider:

• Training your line managers to understand what the menopause is and how to support those affected;
• Appointing a menopause champion, i.e. someone from your staff with relevant training who can be a point of contact for affected staff and represent their interests;
• Making reasonable adjustments to help: e.g. changes to workplace facilities, resources, environment, practices and policies;
• Referring staff to occupational health early, before starting formal disciplinary processes; and
• Providing external resources that offer help and guidance about menopause-related subjects.

How we can help
We’ve recently released a Menopause policy that you can adopt in your business. It can help you to:

• Raise awareness within your business of the menopause and its impact;
• Encourage open discussions between managers and staff;
• Guide managers on how to approach the issue;
• Tell affected staff about what reasonable adjustments you can make and how to access more information; and
• Make it clear that victimisation, harassment and bullying are not tolerated.

Putting a policy in place, and following it, can help your staff and help you to avoid potential legal claims.