Menopause in the workplace: How to avoid discrimination
posted 15th December 2021
The recent headlines have shown a growing number of women bringing discrimination and disability claims due to menopause to the Employment Tribunal.
The decision taken by the Employment Appeal Tribunal (EAT) in the case of Rooney v Leicester City Council highlights the lack of awareness of all the potential symptoms and how these can affect a woman's day-to-day life.
Menopause is not specifically protected under the Equality Act 2010, however its effects can satisfy the definition of disability; a physical or mental impairment, which has a substantial and long-term effect on the ability of a person to carry out day-to-day activities.
The symptoms of menopause can be psychological as well as physical and can vary in severity; sometimes hindering the ability to complete day-to-day tasks.
In Mrs Rooney's case, the symptoms and issues she highlighted were not considered by the Employment Tribunal to satisfy the definition of disability and were not seen to be effecting her day-to-day activities.
The EAT disagreed.
Mrs Rooney's ability to care for other members of her family should not have been considered to show that she was able to carry out day-to-day activities. Moreover, it was underlined by the EAT that the symptoms that Mrs Rooney described, such as forgetting meetings and appointments, losing her personal possessions, leaving the house unlocked, forgetting how to operate her car or cooker would affect her day-to-day life and the tribunal should have considered them carefully.
What legal issues should employers consider?
Discrimination
Employers should be aware of the potential discrimination issues that could arise with menopause:
1. Sex Discrimination: this occurs in circumstances where a female employee's health symptoms, in this case menopausal symptoms, are treated and considered as less serious than health symptoms that could be experienced by a male employee.
2. Disability Discrimination: certain symptoms could amount to disability (depending on the specifics of the case). Employers will have a duty to make reasonable adjustments if they are aware of a disability of an employee. The adjustments could be in relation to the working environment, to the sickness policy in relation to menopausal symptoms and to their flexible working approach.
3. Age Discrimination: menopause will usually occur between the age of 45 and 55, so it is important that the employer's actions do not result in discriminatory actions towards the age category of the employees that do suffer of menopausal symptoms.
Additionally, employers should also be aware of non-binary and transgender employees who might experience menopause.
Constructive dismissal
Employees will have the right to bring a constructive dismissal claim if the actions of their employer amount to a breach of the relationship of mutual trust and confidence.
Health and safety
Health and safety of employees should be at the forefront of the employer's thoughts. Mrs Rooney's case highlights that women who suffer from menopausal symptoms might request or need adjustments to their working circumstances. Employers will need to conduct a risk assessment and ensure that the environment is appropriate for their employees.
Harassment
This would occur if female employees are subjected to unwanted behaviours from the employer or to comments related to the menopause symptoms that they are suffering.
What steps should employers consider?
Training
It is important for employers to have knowledge of the subject so to ensure a correct assessment of the circumstances.
Raise awareness
Employers should raise awareness on the topic and should not feel uncomfortable discussing the symptoms and the issues of menopause.
Menopause policy
It is important that this topic is included in staff handbooks and introduced as a policy.
Risk assessment
Employers should provide a safe environment for their employees, which in cases could lead to an adjustment of the working environment and working station of the employee.
We can assist you with any employment policy, training or risk assessment. If you have any queries about this, or another other employment or HR matter, please do not hesitate to contact our Employment and HR Team.
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