What is menopause and who does it affect?
Menopause is defined as the permanent end of menstruation and fertility, typically occurring between the ages of 45 and 55. It is caused by a decline in the production of estrogen and other hormones. It is accompanied by a range of physical and emotional symptoms that can be challenging to manage. On average, menopause symptoms last between four and eight years, but for about 10% of people going through the menopause they can continue for up to 12 years. Symptoms can begin during the perimenopause and continue post-menopause; they do not cease simply because the technical menopause has occurred.
What are the symptoms of menopause?
The menopause affects people going through it in different ways. The types of symptoms, how severe they are and when and for how long they occur, will vary from person to person. Three out of four people going through the menopause experience symptoms; one in four could experience serious symptoms. Symptoms can last on average four years but for some can last much longer. Common physical and psychological symptoms of the menopause include fatigue, night sweats, hot flushes, headaches and migraines, skin irritation, dry eyes, urinary problems, muscle and joint stiffness and pain, heavy and/or painful periods, insomnia/difficulty sleeping, difficulty concentrating and forgetfulness (‘brain fog’), anxiety or depression, mood swings and panic attacks.
Menopause and your role as an employer
According to the Acas guidance on managing the effects of the menopause, supporting and creating a positive and open environment between an employer and someone affected by the menopause can help prevent the person from losing confidence in their skills and abilities, feeling like they need to take time off work and hide the reasons for it (research suggests 14 million work days are lost each year due to menopause symptoms), having increased mental health conditions such as stress, anxiety, depression and leaving their job.
Employers should consider how an individual’s job role and responsibilities could make their menopause symptoms harder to deal with, for example if they work long shifts, they cannot take regular toilet breaks, their job requires restrictive clothing and/or their job does not have much flexibility.
Menopause and discrimination
Although menopause is not specifically under the Equality Act 2010 as a protected characteristic, employees may still have protections on the grounds of age, sex, disability and gender reassignment grounds. A menopausal worker may be protected under the Equality Act 2010 from the following types of prohibited conduct:
- direct discrimination
- indirect discrimination
- discrimination arising from disability
- (a failure to comply with) the duty to make reasonable adjustments
Whilst menopause is not classed as disability, depending on the circumstances, the physical and physiological symptoms of the menopause may amount to a disability under the Equality Act 2010. Although menopause symptoms may be recurring but intermittent and fluctuating, if they have a substantial and long term (at least 12 months) adverse effect on the worker’s ability to carry out their day-to-day activities, this could amount to a disability.
For example, in a case of Merchant v British Telecom ET Case No: 1401305/11 Ms Merchant was dismissed by her employer following a final warning for poor performance. Prior to her dismissal Ms Merchant informed the employer that she was going through the menopause which could affect her concentration levels. The manager undertook no further medical investigation into her symptoms and did not refer her for an occupational health assessment. This was in breach of the employer’s performance management policy. Ms Merchant successfully claimed unfair dismissal and direct sex discrimination.
In another case, A v Bonmarche Ltd (in administration): 4107766/2019 the employment tribunal found on the facts that the employer had treated the claimant, a woman going through the menopause, less favourably on grounds of age and sex than it would have treated someone who was not a woman of menopausal age. Her claim for harassment also succeeded—her manager humiliated her in front of other staff and referred to her as a ‘dinosaur’ in front of customers. The claimant was awarded an injury to feelings award of £18,000. Although only a first instance decision and therefore not a binding authority, the judgment is a useful example of what may amount to menopause-related harassment.
You can find out more on recent employment tribunal decisions here.
Gender Reassignment, Non-Binary Staff & Menopause
It might not always be obvious who is experiencing the menopausal symptoms. It is important to be aware that there will be people who are going through menopause that will not identify as women. It is therefore crucial that training and communications around menopause support are written and displayed in an inclusive way. Employers should use inclusive language in their policies dealing with menopause. References should be made to ‘people going through the menopause’ or ‘menopausal employees’ in order to include non-binary and trans staff, rather than always referring to a woman.
Treating individuals going through menopause differently because they do not identify as women would also most likely be discriminatory. Gender reassignment is a protected characteristic under Equality Act 2010. A person has the protected characteristic of gender reassignment if they are planning to go through, are going through or have gone through a process (or part of a process) to reassign their sex. This could be by changing physical or other attributes related to someone’s sex. If an employer puts an employee or worker at a disadvantage or treats them less favourably because they have, or someone thinks they have, the protected characteristic of gender reassignment, this could be discrimination.
Carrying out risk assessments & making reasonable adjustments
An employer can be automatically liable for discriminatory acts by anyone acting on the employer’s behalf, whether or not done with the employer’s knowledge, unless the employer can show they had taken all reasonable steps to prevent such actions. This would normally be where the employer has provided training to employees on menopause and discriminatory issues, had all the appropriate policies in place and have routinely and genuinely enforced those policies. Employees and agents may also be personally liable for their own discriminatory actions in contravention of the Equality Act 2010 provided the employer or principal is vicariously liable for it as well (or would be but for the fact that the employer establishes the employer’s defence).
An employer should ensure all managers, supervisors and team leaders are trained to understand their role when it comes to offering support to staff, how to talk with and encourage staff to raise any menopause concerns, how different stages and types of menopause can affect staff and that support needed can vary from person to person.
An employer also has strict duties under health and safety legislation. Employer should therefore ensure that those responsible for health and safety consider those who are going through menopause in their assessments. According to the Acas guidance, for the menopause, a risk assessment should include the temperature and ventilation of the workplace, the material and the fit of the employer’s uniform, if there is one, and whether it might make staff going through the menopause feel too hot or worsen skin irritation, whether there is somewhere suitable for staff to rest if needed, for example a quiet room, whether toilet and sanitary disposal facilities are easily accessible, whether cold drinking water is available, whether managers and supervisors have been trained on health and safety issues relating to the menopause.
Flexibility may be a lifeline to those suffering from menopause symptoms, employers should therefore accommodate reasonable requests for flexibility and homeworking.
Employers should also ensure that those members of staff dealing with performance and absence related issues are sensitive to the issues discussed in this article.
Do employers need a menopause policy?
Although there is no legal requirement for the employer to have the policy, having one would always be beneficial. This policy would outline the support and accommodations provided to employees experiencing menopause. The goal would be to create a safe and supportive work environment that recognises and accommodates the physical and emotional changes that occur during this life stage and would help set clear processes and procedures for management who may have to deal with those sensitive issues.
How can our employment lawyers help you?
If you are affected by any of the issues discussed in this article, our employment law specialists can assist you. Whether that is guiding employers on how to approach menopause in the workplace, or assisting employees with employment law tribunal claims.