Menopausal workers are the fastest growing demographic in the workforce and as at December 2021 between 75% and 80% of menopausal women were in work. Menopausal workers discriminated against as a result of the menopause can currently use the convoluted route of claiming harassment or discrimination under associated protected characteristics, but with menopause being a universal experience of women (as well as some transgender and non-binary people, hence the term “menopausal workers”) – is it time for menopause to become a standalone protected characteristic within equality legislation?
What is the menopause?
Given the current (albeit improved) stigma around menopause, it may serve to start by providing a brief explanation as to what the menopause and perimenopause is and how it affects those who experience it.
Perimenopause and menopause are the medical terms for the period where a woman, transgender or non-binary person is in the final stages of having menstrual periods. It involves a decrease in hormone levels which often causes a whole host of physical and mental problems including, but not limited to:
- Hot flushes and night sweats
- Headaches including migraines
- Difficulty sleeping
- Aches and pains including muscle and joint stiffness
- Skin irritation
- Irregular periods which can become heavier
- Anxiety, panic attacks and loss in confidence
- Problems with memory and concentration
The symptoms suffered and the degree to which they are suffered varies from person to person, however a recent report of the House of Commons Women and Equalities Committee entitled Menopause and the workplace survey results (the W&EC report) stated that “99% of respondents described at least one menopause symptom”.
Whilst the menopause usually occurs between the ages of 45 and 55, with the average being 51, some can experience menopausal symptoms as early as 40 and the W&EC report recorded 8% respondents suffering symptoms before the age of 40. The menopause symptoms can therefore span up to ten years. So why, when it affects so many for so long, is it talked about so little?
The dangers of stigma for employee and employer
The lack of education surrounding the menopause is well established and evident in the lack of awareness and support both in and out of the workplace. Menopause is still a taboo topic in most workplaces and as a result many menopausal workers feel it is something they must quietly endure. However it is not just the individual who suffers as a result of this stigma, but employers too.
Poor performance issues can arise as a direct result of menopause symptoms, as well as the anxiety that may be experienced as a result of anticipated poor performance. This is in most cases heightened by an inability to discuss menopause in a safe and supportive environment. In some cases menopausal workers find it easier to stop working and employers risk losing talent and diversity at senior management level.
There is also the possibility of increased sickness absence which results in appropriate disciplinary or dismissal procedures needing to be followed by the employer. Where stigma prevents these absences being properly attributed to the menopause, employers may be creeping into unfair dismissal territory if insufficient investigation/procedure is carried out in relation to an employee’s current menopausal condition or prognosis for the future.
This was the case in Merchant v BT where a manager used knowledge of his wife and HR advisor’s experiences with the menopause in lieu of proper investigation, an approach that was inevitably highly criticised by the Tribunal. The lack of investigation was contrasted with the medical investigations carried out in relation to two other employees who had raised health issues (a heart condition and a blood disorder) and resulted in a ruling of unfair dismissal and direct sex discrimination. Lack of explicit legal protection combined with societal stigma can make an employer extremely vulnerable to litigation when dealing with the treatment or dismissal of menopausal workers.
An employer should also be conscious that they are vicariously liable for any harassment suffered by a menopausal worker and it should therefore be a priority that staff are educated and aware of menopause symptoms and the impact they have on menopausal workers. The case of A v Bonmarche Limited saw a menopausal worker who was taunted about her age and experience with the menopause succeed in a claim for harassment on grounds of both age and sex.
The current claim for menopausal workers
Whilst there is a distinct lack of Manx decisions in this area, recent years have seen an increase in “menopause cases” brought before the UK Employment Tribunal under the guise of disability, sex, gender reassignment or age discrimination, the majority of cases being pleaded as disability discrimination.
Whilst at first glance it appears that the menopausal worker is adequately protected, the differing criteria and procedure for claiming harassment or discrimination on grounds of disability, sex, gender reassignment or age can be very overwhelming and may deprive a menopausal worker of the confidence to bring a claim.
Does a menopausal worker need to produce a comparator? Will the employer be required to make reasonable adjustments? The answer to these questions will differ depending on the grounds of discrimination brought.
Explicit legal provision for the protection of menopausal workers would provide clarity to employee and employer alike and enable employers to adjust their policies, procedures and culture accordingly. With an increase of menopausal cases potentially on the horizon, employers should ensure that they are equipped to support their menopausal workers and are removing the stigma through policy, procedure and staff culture.
 A v Bomarche Ltd (in administration) 4107766/2019 – A v Bonmarche Ltd (in administration): 4107766/2019 – GOV.UK (www.gov.uk)
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