Menopause is part of the natural ageing process in a woman’s life, usually occurring between the ages of 44 – 55, however some women may experience symptoms much earlier. According to the NHS, menopause occurs when a woman’s menstrual cycle has stopped for 12 consecutive months due to lower hormone levels. On average, menopause symptoms last between four and eight years, although for around 10% of women they can continue for up to 12 years.
There are three stages of menopause, the first being “perimenopause” where a woman’s periods continue but the body prepares itself for the menopause. Perimenopause then transitions into “menopause” ending when a woman has not had a period for 12 months. This last phase is known as “post-menopause” although symptoms may still continue notwithstanding a woman is technically post-menopausal.
Menopause is related to the menstrual cycle and therefore affects women whose birth gender is female. Menopause (or the symptoms associated with it) can also affect trans individuals and those who identify as non-binary in terms of their gender. Employers should therefore remember that it might not always be obvious who within the workforce may be experiencing menopause symptoms.
Not all women, however, will experience each stage of the menopause, and in some instances, menopause will be accelerated ie as a result of a surgical operation or cancer treatment.
Whilst the menopause can affect woman in different ways, common physical and psychological symptoms include (but are not limited to):
- fatigue
- sleeplessness
- hot flushes
- memory loss
- poor concentration
- headaches
- muscle and join pains
- urinary problems
- depression or anxiety
- irregular periods
Treatments and strategies to alleviate menopause symptoms may include hormone replacement therapy (HRT), cognitive behavioural therapy (CBT) to tackle stress and manage anxiety, eating a healthy balanced diet and taking exercise.
Menopause and equality law
Menopause is not specifically protected under the Equality Act 2017, however, if an employee is treated unfairly because of the menopause, this may amount to discrimination on the grounds of one or more of the protected characteristics of age, disability, gender reassignment or sex (see our equality articles on each of these protected characteristics). Menopause may also be relevant in the context of occupational health and safety.
Menopause discrimination claims can be complex, because several protected characteristics may be relevant or engaged at once.
For instance, an employer may be found to have discriminated against an employee who is experiencing menopause symptoms if the employer:
- fails to make reasonable adjustments
- fails, in relevant circumstances, to assess whether there is a causal link between menopause and the employee’s behaviour or performance when undertaking an HR process (eg disciplinary or capability), or
- makes or allows employees to make offhand comments relating to menopause, as these may amount to harassment
Menopause and unfair dismissal claims
Menopause related unfair dismissal claims often concern employees who are dismissed for misconduct or capability issues. It is worth noting that how individuals cope with menopause may vary from one person to another and that the symptoms may be more or less severe, both over time and as between different individuals. Employees can also be reluctant to disclose the reason for an issue arising – assuming if they are aware of the symptoms of declining hormone levels – when it comes to their physical and mental ability to “show up” for work.
As with any misconduct or capability dismissal, an employer must show that it has carried out a reasonable investigation or genuine and fair performance management process before deciding to dismiss the employee. This may require consideration of whether, and to what extent, menopause could be affecting the employee’s behaviour/performance levels. In turn, this could involve the employer obtaining relevant medical evidence and making adjustments in its HR processes as well as its assessment of the underlying conduct or performance concerns to reflect the impact of menopause on the individual.
Case law examples
The following illustrations from UK cases help put the legal protections in context:
- An employee was placed on performance management yet the employer failed to consider the possible impact of the menopause, notwithstanding a letter from the employee’s GP. Instead, the employee’s manager decided to rely on his knowledge of his wife’s menopause symptoms (which was also a breach of the employer’s performance management policy). The tribunal considered this particularly significant because women experience menopause in different ways and with varying severity of symptoms. The failure to refer the employee for OH assessment before taking the decision to dismiss was considered to be direct sex discrimination in the circumstances (Merchant v BT).
- The claimant’s menopause symptoms included hot flushes, sweating, palpitations, anxiety, night sweats, fatigue, poor concentration, urinary problems, headaches, incontinence and joint pain. Her symptoms led her to forget to attend events and appointments, caused her to lose personal possessions and meant that she spent prolonged periods in bed due to fatigue. The Employment Appeal Tribunal found that the menopausal symptoms the employee was suffering amounted to a disability for the purposes of the Equality Act 2010 (UK equality legislation) as they had a substantial and long-term adverse effect on her ability to carry out day to day activities (Rooney v Leicester City Council).
- An employee’s manager started a bullying campaign, ridiculing the employee as she was going through the menopause. The manager made comments regarding her age and the fact she was menopausal in front of other staff as well as customers. No support or help were offered, including refusing to reduce the temperature in store. Part-time hours were agreed and then subsequently withdrawn, with the employee being told to use holiday. The employee was further told she was “pushing her luck” when she asked to leave the shop floor to take medication. The employee resigned and was found to have been constructively dismissed due to the manger’s treatment which amounted to sex discrimination and age-related harassment (A v Bonmarche Ltd).
Menopause friendly workplaces and reasonable adjustments
Guidance encourages employers to create a positive and open environment for employees suffering from the effects of the menopause. This should include the employer considering how an individual’s role and responsibilities might be impacted by menopause symptoms, for example if they work long shifts, are unable to take regular toilet breaks or have to wear restrictive clothing.
Women may be reluctant to disclose to their employer that they are going through the menopause, or suffering symptoms, for a number of reasons which may include concerns regarding job security or opportunities for promotion being taken away.
Where menopause amounts to a disability under equality legislation (bearing in mind this is likely to differ in individual cases), an employer is under a legal obligation to make reasonable adjustments. However, even where menopause does not amount to a disability, an employer has a legal obligation to carry out assessments of the risks to health and safety of employees in the workplace. Making accommodations that are “menopause friendly” can additionally benefit employees not currently going through menopause (or who will never go through menopause) and foster a more inclusive, accepting and caring workplace generally.
Menopause related adjustments an employer could consider making include:
- providing fans and/or functional air conditioning
- supplying chilled drinking water
- relaxing uniform policies or allowing cooler clothing to be worn
- adopting flexibility around toilet breaks and ensuring toilets are easily accessible
- offering shower facilities
- allowing medical appointments to be taken during working hours
- permitting flexible working arrangements
Depending on the nature of adjustments in any particular case, it may be advisable to record these in writing (for instance, a varied working pattern or flexible start/finish time). Because symptoms and the need for adjustments can change over time, the employer will need to review and revise arrangements periodically and should also listen to feedback as well as specific requests.
Above all, employers should ensure that managers are trained to talk and listen sensitively, find ways to support employees navigating menopause (including perimenopause and post-menopause) and have awareness of the symptoms and potential impacts it may have on employees’ health and wellbeing.
A menopause policy or guidance document, easily accessible and well publicised, can reduce the risk of tribunal claims, as well as support a better working environment.