Employers: Engage with the issue of menopause in the workplace to avoid the risk of tribunal claims and to improve employee engagement
The issue of menopause at work is currently receiving a lot of press attention and this is for good reason – it is also receiving a lot of attention from courts and tribunals.
What are my current legal obligations when it comes to menopause related issues?
Employers do not currently have any specific obligations when it comes to the menopause. Employers do however have obligations not to treat employees unfairly or, to discriminate against them because of their sex or on grounds of disability.
Whilst we have not yet had a final Tribunal decision which defines menopause as a disability, we have had first instance decisions which say this, and we are seeing a rise in the number of legal complaints being made which relate to treatment experienced as a result of menopause. Whilst discrimination claims on the basis of menopause may therefore be defendable at this moment in time, other claims including those relating to wider unfair treatment or, subjection to disadvantage may not be.
In the case of Miss J Donnachie v Telent Technology Services Limited, a preliminary judgement was passed which categorised an employee’s symptoms of menopause as meeting with the definition of disability for the purposes of the Equality Act 2010. The Claimant in this case experienced extreme hot flushes and poor sleep. To attract a legal status of “disabled” an individual has to show that they have a physical or mental impairment that has ‘substantial’ and ‘long-term’ negative effect on their ability to do normal daily activities. This is a very broad definition and many impairments are capable of being captured and in this case, the Judge was of the view that the Claimant’s symptoms met with each of these limbs of the test for disability.
In real-life an employee might experience the same extreme hot flushes which may impact upon their ability to carry out their work as normal. The employee may raise this with their employer and ask to be moved to a desk nearer to a window. If the employer unreasonably refused to make this adjustment then this could amount to a failure to make reasonable adjustments and potentially, if a Judge found in the employee’s favour on the categorisation of them as a disabled person could amount to a successful unlawful discrimination claim.
What can/should I be doing to protect my business now?
As things stand, the best way to get ahead of this risk (and also to bring the conversation about the menopause into the workplace) is to consider implementing a Menopause Policy. Whilst there is no legal obligation for employers to have a Menopause Policy, it is something that can bring significant benefits. Policies ultimately serve as useful education tools and the better educated staff members are about real-life issues, the less fear, bias and discrimination tends to arise. A policy will also help to break taboos and make workplace conversations about the effects of menopause easier. Conversation helps to breed a culture where women feel comfortable about discussing their symptoms and what impact that has on their working lives and in turn, will help to breed a more invested, comfortable workforce.
Workplace policies help to normalise practice and where policies provide suggestions for dealing with certain issues, it can in turn help to normalise these measures too. By way of example: it is generally accepted that flexible working can be extremely beneficial to menopausal women and having a policy which normalises flexible working for this demographic can help to remove any bias or misunderstanding which other segments of the workforce may have. In normalising practice and measures, organisations can ensure that women feel recognised and included, which is more important than ever.
What risks do I currently face?
From a legal perspective the biggest risk is finding yourself on the wrong-side of an Employment Tribunal claim.
From a business perspective however, it is worth remembering that 51% of the UK population is currently female. Menopause is not a unique or uncommon process: it affects a significant part of the population and therefore potentially, a significant portion of a businesses’ workforce. There is a year on year, generation on generation rise of both the number of women in the workplace and the number of older employees in the workplace and it therefore follows that the number of menopausal employees will also rise. Women aged 50-64 are the most increased, economically active group at present given the increase in state pension age, the effects of Covid and longer life expectancy. Employers need therefore, to be aware of the menopause and the affects which it can have in order to remain an employer of choice and to continue getting the benefits which its female contingent offers.
In our view, this is an issue which is going to grow. There will be no backward trend. Women are feeling more empowered than ever by society to raise concerns with their employers and companies who do not include HR with decisions relating to menopause related matters will potentially experience problems.
If you would like to discuss any aspect of this article, including how we can help you create and implement a Menopause Policy and support your management team with specific Menopause and Disability related training, then please contact the Employment Team on 01274 864999.
Author: Jonothan Scollen, Employmen
