Unlocking Employee Wellbeing: Addressing Menopause Support in the Workplace or Risking Talent Drain!
Joanna Rose · Posted on: October 17th 2023 · read
Since 2009, the IMS (International Menopause Society) alongside the World Health Organisation (WHO) designate October as World Menopause Awareness Month.
Menopause presents a workplace challenge that extends beyond typical age boundaries. While it predominantly impacts women aged 45 to 55, it can affect those who are younger, and its symptoms may persist post-menopause. The menopause transition can include a range of symptoms which, on average, last for four years. Symptoms can include everything from fatigues and hot flushes to anxiety, insomnia and problems with concentration and memory, and for around a quarter of women, these symptoms have a severe impact on day-to-day life. Menopause happens to around half the global population, yet the menopause can often still be shrouded in taboo.
Failing to have proper processes, policies and support mechanisms in place creates risk in losing Talent within an organisation.
The Office for National Statistics reports a growing number of working women in the UK aged 50 to 64, currently at 4.5 million. In 2019 the CIPD completed research that suggested that three out of five working women between the ages of 45 and 55 who were experiencing menopause symptoms said it had a negative impact on them at work. Prioritising support for employees experiencing menopause can enhance staff retention and reduce absenteeism. Although the Equality Act 2010 does not explicitly list menopause as a "protected characteristic," the government is contemplating changes in this regard. Claims related to menopause at Employment Tribunals are on the rise, and women are increasingly aware of their employment rights.
Employment Tribunal claims - Implications for Employers
The increased rates of employment among women aged 50 and above mean that more working women than ever before will experience menopause transition during their working lives.
According to HM Courts and Tribunal Service, in 2017 there were five cases, which increased to six in 2018 and seven in 2019. This number saw a significant jump in 2020 with 16 cases and further increased to 23 cases in 2021. Whilst there was a slight dip to 18 cases that cited menopause in 2022 in the first six months of 2023 14 cases have already been recorded.
These figures indicate that there is still much work to be done. Currently the UK is on track to record the highest number of cases involving menopause at Tribunal, highlighting the need for greater awareness and support within Businesses. As the number of cases continue to rise, businesses must take the necessary steps to ensure that they are creating inclusive, diverse and supportive environments for employees experiencing menopause. This may include implementing appropriate policies and educating all staff on the subject through good quality training.
Employers owe statutory duties of care to ensure the safety and wellbeing of their workforce. They are also deemed to be vicariously liable for the discriminatory conduct of their employees and workers.
On 9 October the Employment Tribunal (ET) commenced hearing the case of Ms M Rooney v Leicester City Council who has raised claims of menopause discrimination, harassment and victimisation on the grounds of disability and sex. The Equality and Human Rights Commission (EHCR) note that It is the first case at employment tribunal where menopause symptoms are deemed to amount to a disability for the purposes of the Equality Act. This is due to a ruling by the Employment Appeals Tribunal (EAT) that a previous Employment Tribunal (ET) had “erred in law in holding that the Claimant was not a disabled person at the relevant time” and that this issue must be remitted to the ET. It marked the first time the court of appeal had decided that menopause symptoms could amount to a disability, setting a legal precedent.
Previous Employment Law Cases
Here we will look back at cases which illustrate the various claims that can arise as a result of employers not taking the necessary steps to understand the impact of menopausal symptoms on employees who are experiencing this difficult but inevitable time in their lives.
Merchant v BT Plc (2012)
The case of Merchant v BT Plc (2012) (10 January 2012) was the first menopause related tribunal case which established that when an employee is subjected to less favourable treatment as a result of her menopausal symptoms, this can amount to sex discrimination.
The claimant faced challenging menopausal symptoms that were negatively impacting her work performance. She had undergone the capability and performance management process multiple times and was currently at the stage of receiving a final written warning. Despite these efforts, her performance issues persisted, leading her employers to contemplate either offering her alternative employment or dismissal.
In response, she provided her employers with a letter from her GP, stating that she was going through menopause, which "can affect her level of concentration at times," and that she was experiencing stress due to her role as a caregiver for two family members.
The company's performance management process at BT mandated that managers investigate whether an employee's underperformance might be linked to health reasons. However, the claimant's line manager chose not to consider the impact of her menopausal symptoms on her job performance and did not seek additional medical or expert opinions. Instead, he relied on his personal knowledge of menopause, based on his wife's experiences and symptoms. This approach disregarded the company's performance management procedure, as it was evident that her health issues were likely contributing to her declining performance.
Ultimately, the claimant was dismissed from her position due to poor performance without further medical investigations. Notably, her manager had previously referred male employees to occupational health when their performance was potentially affected by health issues. In response, Ms. Merchant filed claims for unfair dismissal and direct sex discrimination.
The Tribunal upheld Ms. Merchant's claims and emphasised that the manager would not have adopted such a "bizarre and irrational approach" with conditions unrelated to gender. Failing to refer her for an occupational health assessment after receiving the GP's letter, before making the decision to dismiss, was deemed to be direct sex discrimination. The Tribunal reasoned that a man facing health issues with similar symptoms affecting concentration and job performance would not have been treated in the same manner, which directly contradicted the employer's own policy. Furthermore, making assumptions about the claimant's symptoms constituted unlawful sex discrimination.
Davies v Scottish Courts and Tribunals Service (2017)
In the case of Davies v Scottish Courts and Tribunals Service (2017), the claimant, a Court Officer, was grappling with perimenopausal symptoms that included memory loss, heavy bleeding, and periods of feeling "fuzzy," emotional, and lacking concentration. She was also undergoing treatment for cystitis, which required her to dilute medication in water. On 27th February 2017, she brought her medication to work with the intention of diluting it in the water jug on her desk and consuming it during the day.
Upon returning to the Court after an adjournment, she noticed that items on her desk had been moved, and her water jug was empty. She observed two litigants drinking from a jug of water and mistakenly believed they were consuming her water, mixed with her diluted medication, leading to panic. She approached the men, inquired about the source of the water, and was informed that the Clerk had provided it. When she expressed her concern about her medication possibly being in the water, one of the men launched into a rant, suggesting that she was attempting “to poison the two older guys in the court” and asking if he would grow “boobs”. The claimant clarified that she didn't believe the medication would cause harm but was uncertain if she had actually put it in the water.
Subsequently, the Respondent conducted an investigation, revealing that the water would have turned pink if the medication had been dissolved in it. The employer concluded that the claimant had lied and brought the court into disrepute, leading to her dismissal due to her forgetful and confused behaviour, which were attributed to her peri-menopausal symptoms.
The claimant was successful in her claim for unfair dismissal and discrimination arising from disability. The Tribunal ordered the Respondent to reinstate the claimant and awarded her £14,009.84 in arrears of pay, along with £5,000 for injury to feelings.
A v Bonmarche Ltd (2019)
In the case of A v Bonmarche Ltd (2019), the Claimant had dedicated 37 years to her retail career, consistently achieving high performance. However, her work environment took a troubling turn in approximately May 2017 when she began to go through menopause. Her male manager subjected her to belittlement and public humiliation in front of younger colleagues, often ridiculing her. He even went as far as referring to her as "a dinosaur" in the presence of customers and continuously criticised her unfairly. On one occasion, he reprimanded her for failing to staple together two pieces of paper, attributing it to her experiencing menopausal symptoms. Additionally, the manager refused to adjust the shop's temperature to accommodate the Claimant's needs and failed to make reasonable adjustments despite being aware of her condition. This hostile environment led to the Claimant taking sick leave due to anxiety and depression. Upon her return, she was met with hostility and dismissive comments when requesting a break for medication by being told she was “pushing her luck”.
The Claimant escalated her manager's mistreatment to higher management, but no action was taken. Her mental health deteriorated, resulting in a breakdown in November 2018. Upon her return to work, the manager displayed extreme coldness and threats towards her. Feeling trapped, the Claimant felt she had no other option but to resign from her position.
The tribunal ruled in favour of the Claimant, upholding her claims for constructive unfair dismissal, sex discrimination, and age discrimination. She was awarded £10,000.00 in compensation for loss of wages and £18,000.00 for injury to feelings.
Best v Embark on Raw Ltd (2020)
In the case of Best v Embark on Raw Ltd (2020), the Claimant served as a sales assistant in the Respondent's pet food business from January 29, 2019, until her dismissal on May 11, 2020.
Amid the early stages of the Covid-19 pandemic, the Claimant expressed acute anxiety about her employer's apparent disregard for social distancing and health and safety guidelines. She repeatedly raised concerns, only to be dismissed as "paranoid." Simultaneously, she was experiencing menopausal symptoms, which she had explicitly indicated were a sensitive topic for her, and she did not wish to discuss it. Despite her clear stance, the owner continued to inquire about her menopause during discussions about Covid-19 safety measures. Even after a customer mentioned experiencing a "hot flush," the Claimant covered her ears and stated her disinterest in discussing the topic. Nonetheless, the owner persisted in the conversation even after the customer left.
The Respondent terminated the Claimant's employment citing her rudeness and confrontational behaviour towards colleagues, as well as her consistent complaints.
The tribunal found that the Respondent owner had violated the Claimant's dignity and created a humiliating work environment by insensitively raising the topic of menopause after she had clearly expressed her discomfort. Additionally, they determined that the Claimant had been treated unfairly due to her complaints regarding the menopause-related comments. Consequently, the tribunal awarded a total of £20,057.74 in compensation.
In Conclusion
Individuals who are going through the menopause may experience disability, sex, or age discrimination from colleagues or managers. If discrimination does occur while at work, the employer will be held responsible. Therefore, to avert the risks of unfair and discriminatory treatment, employers should review their policies and procedures, and update them if there is not already a menopause related policy in place, and / or consider adapting performance, disciplinary and absence policies to include measures such as making adjustments for employees whose menopausal symptoms may be impacting on their attendance, performance and conduct at work.
Best practice for employers includes training managerial staff to ensure they are familiar with the symptoms of menopause and are able to deal with issues appropriately and sensitively; considering adaptations that may need to be made to address specific needs of menopausal employees such as ventilation and access to suitable toilet facilities; and reviewing relevant policies such as sickness and performance management to consider whether adjustments are required to take account of the impact of the menopause.
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Our HR Solutions Team can support your business with menopause awareness, including reviewing your current policies and procedures, drafting bespoke policies suitable for your organisation, and providing expert guidance to business owners and managers. We can advise on best practice, as ignorance is not a legally defensible option. Please get in touch today.
