Understanding Menopause and Employment Law in the UK
Menopause, a natural stage of life when oestrogen levels decline and periods stop, affects many individuals in the workforce. According to the NHS, menopause is confirmed when a woman has not experienced a menstrual period for over 12 months. This phase is preceded by perimenopause, where menopausal symptoms manifest but periods have not ceased. While the UK does not have specific employment legislation addressing menopause, existing laws related to discrimination and health and safety offer some protection. Here, we explore the key legal principles, case law, and potential future directions for menopause-related employment law in the UK, providing essential information for everyone.
Key Legal Principles and Calls for Change
As employment rates among women aged 50 and above increase, menopause has become a significant workplace issue. The Women and Equalities Committee has been advocating since July 2022 for menopause to be recognised as a standalone protected characteristic under the Equality Act 2010. This recognition would impose a duty on employers to make reasonable adjustments for menopausal employees. However, the UK Government has, so far, decided against amending the Equality Act to include menopause. Instead, initiatives like the Menopause Employment Champion and the UK Menopause Taskforce aim to influence healthcare, education, workplace support, and research, potentially paving the way for future legislative changes.
Legal Claims Relating to Menopause
Currently, claims related to menopause are predominantly pursued under discrimination and health and safety laws. People experiencing menopause may bring discrimination claims based on disability, age, and sex under the Equality Act 2010. Employers must be cautious, as discrimination claims can be costly and complex.
Menopause as Disability Discrimination
Menopause can be framed as a disability under the Equality Act if the symptoms have a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. Employers have a duty to make reasonable adjustments to mitigate disadvantages caused by their policies or physical features. Failure to make such adjustments is a common basis for disability discrimination claims. For example, providing a fan to alleviate hot flushes might be considered a reasonable adjustment. However, other adjustments might not be as straightforward, such as maintaining attendance or performance standards.
In cases where menopause affects performance or conduct, employers are advised to seek medical advice to understand the impact of symptoms. Harassment and victimisation claims can arise if employees are unjustifiably treated unfavourably due to their menopausal symptoms. Employers must be aware that they can only be liable for discrimination if they knew or should have known about the employee's disability.
Case law, such as McMahon v Rothwell and Evans (2019) and Gallacher v Abellio Scotrail Ltd (2020), highlights the importance of employer knowledge and the substantial impact of symptoms to establish disability claims.
Menopause as Age Discrimination
Most individuals experiencing menopause are aged between 45-55, making age discrimination claims plausible. Such claims can be based on direct discrimination, indirect discrimination, or harassment related to age. Case law examples, including McCabe v Selazar Ltd (2021) and Anderson v Thistle Marine (2023), illustrate how comments or assumptions about menopausal individuals can lead to successful age discrimination claims.
Menopause as Sex Discrimination
Less favourable treatment or disadvantages related to menopause can also lead to sex discrimination claims. Employers should treat all employees with dignity and avoid gender-related assumptions or criticisms. Cases like A v Bonmarche Ltd (2019) and Sloan v Dumfries and Galloway Health Board (2020) demonstrate how tribunals address sex discrimination linked to menopause.
Unfair Dismissal and the Menopause
Employees with two years of service may bring unfair dismissal claims if they believe their dismissal was unreasonable. Menopause-related unfair dismissal claims often arise in the context of capability or conduct-based dismissals. Employers should seek medical input to understand the impact of menopausal symptoms and determine if reasonable adjustments are necessary.
In Merchant v BT plc (2012), the tribunal upheld claims for unfair dismissal and direct sex discrimination, emphasising the need for employers to handle menopausal symptoms with the same diligence as other medical conditions. Similarly, Louise Kennedy v Tayside Health Board (2019) highlighted the importance of raising health issues early in performance management processes.
Health and Safety Obligations
Employers have a general obligation under health and safety law to assess and manage risks to employee health. This includes considering the specific needs of menopausal employees to ensure the working environment does not exacerbate symptoms. Relevant legislation includes the Management of Health and Safety at Work Regulations 1999, the Health and Safety at Work Act 1974, and the Workplace (Health, Safety and Welfare) Regulations 1992.
Effective Menopause Policies
An effective menopause policy is crucial for fostering an inclusive workplace. Such a policy should:
Define menopause and its symptoms.
Encourage open conversations about menopause.
Provide a process for requesting adjustments.
Offer management training on menopause.
Allow time off for medical appointments.
Address how risk assessments will consider menopause.
Ensure sensitive handling of menopause-related issues.
Outline a complaint process.
Managing Sick Leave and Performance Issues
For Employers: It is essential to record menopause-related absences separately to avoid potential discrimination claims. Allowing time off for medical appointments and thoroughly investigating the causes of absences can help justify actions if challenged. When managing performance issues, consider if menopausal symptoms are contributing factors and whether reasonable adjustments are necessary to support the employee.
For Employees: Ensure that your employer is aware if your absences are related to menopause, so they can record them appropriately. Take advantage of the time off for medical appointments as needed and communicate any challenges you face due to menopausal symptoms. If performance issues arise, discuss with your employer whether reasonable adjustments can be made to help you manage your symptoms and maintain your performance at work.
Conclusion
While the UK currently lacks specific legislation addressing menopause in the workplace, existing discrimination and health and safety laws provide a framework for protecting affected employees. Employers must navigate these laws carefully, considering reasonable adjustments and handling menopause-related issues with sensitivity and diligence. The ongoing advocacy for legislative changes and the work of initiatives like the Menopause Employment Champion may lead to future developments in this area. Until then, employers should adopt comprehensive menopause policies and practices to support their employees and mitigate legal risks.
By understanding the legal landscape and advocating for supportive workplace policies, we can ensure that individuals going through menopause receive the understanding and accommodations they need, fostering a more inclusive and supportive working environment for all.
Read more on how to people managers can support team members undergoing the menopause in our blog ‘Guidance for Managers on How to Support Employees Through the Menopause’.
