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Menopause and the workplace: will the law catch up?

 

With women making up close to half of the UK workforce and women over 50 now the fastest growing demographic in work, will the law catch up on the need to protect women experiencing symptoms of the menopause?

Current statutory protection

Menopausal symptoms can have a huge impact on an individual’s work life. The symptoms can be physical (e.g. hot flushes, heavy periods and headaches) and psychological (e.g. memory loss, anxiety and depression). Research suggests that the UK could be losing up to 14 million workdays a year due to employees experiencing symptoms of the menopause.

There is however no statutory employment legal protection for individuals experiencing symptoms of the menopause at work. Employees are therefore seeking protection under the current legal framework and claims are being brought as either age, sex or disability discrimination claims, or as a health and safety claim. Women are also resigning and bringing constructive unfair dismissal claims based on their employer’s response to their symptoms.

On 23 July 2021, the House of Commons Women and Equalities Committee launched an inquiry into existing discrimination legislation and workplace practices around the menopause, to see whether further support and legislation is required to deal with the impacts of menopause. Consultation has now closed, and we wait to see what the recommendations they make.

Case law

Recently we have seen an increase in Employment Tribunal cases related to the menopause – six in 2019, sixteen in 2020 and ten in the first half of 2021.

This includes the recent Employment Appeal Tribunal (EAT) decision in Rooney v Leicester City Council, which highlights the difficulties that Judges are having in dealing with the impacts of symptoms of the menopause within the current legal frameworks.

Ms Rooney was a social worker employed by the Council. In 2017, Ms Rooney entered the menopause and had several periods of sickness absence with menopausal symptoms and work-related stress. Ms Rooney felt that the Council managed this absence in an insensitive way and resigned in October 2018.

Ms Rooney brought two separate tribunal claims, the second of which argued that:

  • her menopausal symptoms were a disability; and
  • she had been discriminated against by the Council in relation to her disability and her sex.

These claims were struck out at the Employment Tribunal, who found that:

  • Ms Rooney’s menopausal symptoms were not a disability; and
  • there was insufficient evidence of sex discrimination.

Ms Rooney appealed. The EAT has found that the Employment Tribunal failed to provide sufficient reasoning to support its decisions. The claims were remitted back to the Employment Tribunal for a further hearing at a date to be determined.

What employers are doing

Employers are increasingly taking matters into their own hands. Some have had a menopause policy in place for many years. Most have not. Recently ASOS announced that it was introducing a policy to enable staff experiencing symptoms of the menopause to work flexibly and take time off at short notice.

Employers should consider the benefits of putting in place a similar policy to protect employees experiencing menopause symptoms and encourage open discussions with line managers about this subject. This will help employers to support and retain their best female talent.

Where the symptoms of the menopause amount to a disability, employers need to put in place reasonable adjustments. Examples could include regular breaks, desk fans, and working from home.

If you are an employer or employee requiring further advice on menopause in the workplace please contact Neil Johnston or Céline Winham in our Employment Team.

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