How to avoid being taken to tribunal over menopause discrimination

With more and more women working through their 50s and into their 60s, employers are facing a new challenge: to effectively support this fast-growing group of workers and their colleagues during this transition.

Critically, employers need to acknowledge their responsibilities, putting the right policies, practices, information and training in place to support employees – and crucially, to avoid being taken to tribunal for discrimination.

For some women, menopause will be straightforward and they’ll sail through it with barely a symptom. But if we look at the stats, it’s clear that there are a majority of women out there who will need some level of support.

  • The average age of menopause is 51
  • 7-8 out of 10 women of menopausal age are in work (often in senior or leadership roles)
  • 3 out of 4 women experience menopausal symptoms
  • 1 in 4 women experience severe symptoms

The time during which women start to notice symptoms is called perimenopause. For those experiencing symptoms or severe symptoms, the impacts can be debilitating. These symptoms can include anxiety, hot flushes, sleeplessness, low mood, poor concentration and depression – which can make navigating the workplace an extra challenge for women experiencing a cocktail of these.

And if menopause is having an adverse effect on an employee’s ability to carry out their role, responsible employers need to address these issues. The concern over discrimination was highlighted in the Government Report, Menopause transition: effects on women’s economic participation, published in July 2017.

The law on discrimination

Age, sex and disability discrimination towards workers are prohibited under the Equality Act 2010. Direct discrimination is less favourable treatment because of the relevant protected characteristic, while indirect discrimination is a neutral policy applied to all, but which puts those with the relevant protected characteristic at a particular disadvantage. Disability discrimination can also arise through unfavourable treatment because of something arising in consequence of the disability rather than the disability itself and where the employer has failed to comply with its duty to make reasonable adjustments.

There is already a case of a successful tribunal being brought on the grounds of sex discrimination during menopause – Merchant v BT plc – in which the employee was dismissed due to poor performance. The employer’s process demanded that there should be an investigation as to whether the underperformance was due to health factors. However, in spite of the employee presenting a note from her GP declaring her menopausal symptoms were adversely affecting her, the line manager chose not to investigate the possible impact of menopause.

The tribunal upheld the employee’s claims, on the grounds that the manager would never have adopted “this bizarre and irrational approach” with other non-female-related conditions. They found that a man with comparable symptoms – which in this case was poor concentration – would not have been held accountable in the same way. In this case, her dismissal was found to be a case of sex discrimination.

It is worth employers bearing in mind that issues around menopause in the workplace can also be brought to tribunal on the grounds of age discrimination.

What can employers do?

There are a number of steps which employers can take to protect themselves from being taken to tribunal over discrimination over menopause-related issues. These include:

Introducing a clear menopause policy or guidance documents. This will inform leaders, line managers and employees of the company’s process for anyone needing support over menopausal issues.

Providing adequate training for line managers to support this policy.

Assessing each case on its own merits. Every woman experiences menopause differently, so it is not feasible to have a blanket set of rules.

Considering reasonable adjustments in the workplace. Following assessment, these could be something as simple as installing a desk fan or offering an extra uniform, but could also include considering flexible working, reallocating certain tasks, providing private rest areas, ensuring there is constant access to water and toilet facilities.

Fostering an open and transparent environment. Menopause is so often a taboo subject, with many women not feeling able to talk to line managers about their symptoms. By creating a working environment in which employees and managers alike feel comfortable having open discussions, organisations will be taking steps to protect their staff and themselves.

It is worth organisations understanding that many of the reasonable adjustments requested may only be temporary.

No employer should put themselves in the position of being taken to tribunal, particularly when there are simple practical steps they can take to avoid this issue.

The Lester Aldridge employment team deal with these and other issues on a regular basis.

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With offices in Bournemouth, Southampton and London, the employment team can support you and your business in all their HR and employment needs.

Catharine Geddes and the team have a wealth of experience across both public and private sectors in large corporations and SME or owner-managed businesses or for you as an employee.

From staffing issues, policies, handbooks, contract and director service agreements to restructuring, redundancy, TUPE, discrimination and whistleblowing or for your individual employee issues, we have the skills and experience to deliver results. Whatever your employment or HR need, call the team on 01202 786148 now.

Catharine Geddes

About Catharine Geddes

The Lester Aldridge LLP employment team deal with these and other issues on a regular basis. With offices in Bournemouth, Southampton and London, the employment team can support you and your business in all their HR and employment needs. Catharine Geddes and the team have a wealth of experience across both public and private sectors in large corporations and SME or owner-managed businesses or for you as an employee. From staffing issues, policies, handbooks, contract and director service agreements to restructuring, redundancy, TUPE, discrimination and whistleblowing or for your individual employee issues, we have the skills and experience to deliver results. Whatever your employment or HR need, call the team on 01202 786148 now.