Why is menopause a workplace issue?

Why is the menopause an issue for employers?

The menopause can affect the physical and mental health and the wellbeing of a significant proportion of the workforce. From a business perspective, it can lead to reduced productivity and poorer performance, reduced job satisfaction and lower retention rates of menopausal staff.

The menopause occurs between the ages of 45 – 55, with the average age in the UK being 51. The perimenopause typically starts four or five years earlier.  As there are 35 million women aged over 50 in the workplace, this is an important issue for employers. Around one in every three women has either experienced or is currently going through the menopause. Around eight in every 10 women will experience noticeable symptoms and of these 45% will find their symptoms hard to deal with. Symptoms include hot flushes, anxiety, insomnia, problems with concentration, memory and low mood. Six in 10 menopausal women say their symptoms have had a negative impact on their work.

At a time when employers are rightly taking steps to support employees with mental health issues and prioritising their diversity and inclusivity agenda, many organisations are not fully prepared for dealing with the impact of the menopause on their employees.   

Stigma and lack of awareness: a case study 

Although the menopause is a natural transition which affects most women during their working lives, there is a stigma attached to discussing it in the workplace. This is perhaps due to a lack of understanding or an awkwardness associated with dealing with “women’s health” issues.

The recent experience of one of our clients is not unusual. A senior consultant in her late 40s, she was working for a performance orientated, target driven professional services firm. Within a few months of joining, she started to experience increasingly debilitating peri-menopausal symptoms, including loss of concentration and brain fog, anxiety and extreme fatigue from sleepless nights. She was initially reluctant to report these symptoms to her employer or take time off on sick leave. She struggled with the symptoms for the best part of a year, until she reached a point where she felt that she could not continue to hide her symptoms because they were affecting the quality of her work and relationships with clients. She told HR and her line manager.

The firm offered her a later start time (albeit with no reduction in her workload). It did not have a menopause policy so no steps were taken to monitor her wellbeing or offer any other support. An HR Manager made comments to the effect that based on hormone indicators, she didn’t appear to be severely affected (even though the Manager was not medically qualified) and suggested that she was just unhappy in her role. The following year, she was placed on a performance improvement plan, then referred to Occupational Health who gave an opinion that the conditions she was suffering were likely to constitute a disability under the Equality Act 2010. By this point, her relationship with her line manager had broken down irreparably and she subsequently left the firm after agreeing a five-figure compensation sum. Although we can only speculate, the outcome could have been very different had the firm cultivated an environment in which she felt comfortable reporting that she was suffering peri-menopausal symptoms at an early stage and had she received appropriate support at an early stage in response. 

What are the legal risks for employers?

An employer that mishandles employees who are experiencing (peri)menopausal symptoms at work risks employment tribunal claims. If the employee has two years’ service, they will have unfair dismissal protection. Employees are also protected against discrimination under the Equality Act 2010 from the first day of their employment. Potential claims therefore include unfair dismissal, direct or indirect discrimination (on grounds of sex, age and/or disability), discrimination arising from disability, breach of the duty to make reasonable adjustments and harassment.  There is no cap on compensation for  discrimination and employees can receive compensation for injury to feelings, as well as for any financial loss.   

There are only a limited number of reported cases, perhaps reflecting the lack of open discussion about the impact of the menopause on employees. 

The Employment Tribunal case of Ms Merchant v British Telecommunications Plc (2012) is a useful example of a flawed approach towards handling performance issues in menopausal employees. Ms Merchant successfully pursued claims of direct sex discrimination and unfair dismissal against her employer, BT. She alleged that the deterioration in her performance was due to health issues related to her menopause and that BT either did not take these issues seriously or responded to them differently to other non-female specific health conditions. BT’s position was that it had dismissed Ms Merchant fairly on grounds of capability due to her poor performance.

The Tribunal found her dismissal unfair, citing a failure by the decision-maker (Mr Dagless) to investigate whether the menopause was affecting Ms Merchant’s performance. The Judge criticised Mr Dagless because he “wholly improperly made a generalised assumption about how women experience the menopause” and “relied upon his own personal knowledge of his wife’s menopause and his HR adviser’s menopause”. 

Ms Merchant also succeeded in her sex discrimination claim. The Tribunal concluded that Mr Dagless had not provided a proper explanation for failing to follow BT’s usual procedure of undertaking further medical investigations, and either did not take menopausal health problems seriously or believed that they did not need the same response as other non-female specific health conditions. Mr Dagless’s assumptions were based on his “improper, generalised assumptions about menopause without any focus on the particular problems that the claimant was suffering from”.

Leaving aside legal risk, employers risk losing talented senior women and undermining efforts to foster a diverse and inclusive workplace culture.    

What should employers do?

Employers should take a proactive approach, ensuring that they handle each employee’s case sensitively and with a degree of flexibility. Sensible steps to consider include:

• Publish a menopause policy, including information about the menopause and the support available to menopausal employees     
• Educate employees about the menopause and raise awareness of common challenges facing menopausal employees with a view to starting dialogue in the workplace
• Provide guidance and training for line managers on how to have conversations around the menopause with their staff
• Consider reasonable adjustments to assist menopausal employees, such as:
  • Workplace temperature controls, for example providing a fan or a desk near a window that opens
  • Flexible working hours, including later start times should the employee have difficulty sleeping, and the option to work from home
  • Adjustments to uniforms
  • Adapting performance management and sickness monitoring procedures  

Contact Doyle Clayton

We have an experienced team of employment lawyers who can help you. Contact us for a friendly chat and we will work out the best way to approach your situation. Contact us on +44 (0)20 7329 9090 or email us at info@doyleclayton.co.uk