“Why Employers Need To Start Taking Menopause Seriously”

“Why Employers Need To Start Taking Menopause Seriously”

Tuesday, July 9, 2019

Ann-Maree Blake, Partner

Look around your office.  If you have female employees between 45-60, the chances are that some of them, on a daily basis, are struggling to cope.  They may be finding it hard to concentrate and remember things, dealing with humiliating hot flushes that strike without warning, exhausted having not slept properly for nights on end, and struggling with mood swings that are affecting their home life.

But they would never dare complain or tell you.

Because, although things are slowly changing, as a society, we don’t generally talk about menopause and its often-crippling symptoms.

There are around 4.3 million women aged 50 and over in employment in the UK .  The biggest increase in employment rates over the last 30 years is for women aged 55-59 (from 49% to 69%).  These figures are only going to increase, the Office of National Statistics latest projections show there will be around 8.6 million additional people aged 65 years and older in the next fifty years.  In fact, menopausal women are the fastest growing demographic in the workplace

The right to seeing menopause safeguarded in the workplace may be similar to the battle fought by women to have their pregnancy and maternity rights asserted.  Women were routinely dismissed after announcing their pregnancies right up until the 1970s.  In 1975, the UK Parliament introduced maternity leave by passing the Employment Protection Act 1975.  However, for many years, only around 50% of women were eligible for maternity leave due to the lengthy service requirements attached to the right.

Menopause – the good, the bad, and the downright ugly

Menopause is diagnosed 12 months after a woman has her last menstrual period.  However, perimenopause begins several years before menopause and is caused by the ovaries producing less oestrogen.  Most women enter into perimenopause in their 40s, and for some, in their 30s.

Perimenopause can last up to ten years.  Many women only experience minor symptoms, such as the odd hot flush, and some lucky ones sail through the experience with no effects at all.

However, most women will have a variety of symptoms.  The extent to which they intrude on the quality of their life depends on their severity.  Symptoms include:

  • Hot flushes and night sweats
  • Breast tenderness
  • Worsening premenstrual syndrome symptoms
  • Fatigue
  • Irregular periods
  • Urine leakage when coughing or sneezing
  • Urinary urgency (an urgent need to urinate more frequently)
  • Mood swings
  • Trouble sleeping
  • Short term memory problems and trouble concentrating

It is crucial to emphasise how greatly these symptoms can affect the life of the sufferer.  A quarter of women have considered resigning from their job due to symptoms.  Perimenopause depression has even been linked to suicide.

According to the Facility for Occupational Medicine, almost half of women don’t seek medical advice and most women don’t feel comfortable talking about menopause with their line managers.  Also, many line managers don’t feel confident in raising the subject of the menopause.

To move forward and support employers and employees, the embarrassment surrounding this topic, which is a natural, normal occurrence which will affect 50% of the population, must end.

What is the law surrounding menopause at work?

There have been several successful claims in the Employment Tribunal concerning menopause.

Merchant v BT (2012) ((ET/1401305/11)

 

In the first case concerning menopause, the Claimant, Ms Merchant, based her claim on gender discrimination.  She was experiencing severe menopause symptoms and her doctor has diagnosed her with stress and poor concentration.  Her symptoms were affecting her work.

Ms Merchant was put under performance management.  Company policy dictated that line managers had to consider and investigate whether under-performance was due to ill-health.  However, Ms Merchant’s line manager refused to consider the impact of menopause and did not seek expert opinion.  Instead, he relied on his own beliefs and opinions about the condition.

The Claimant was dismissed.  She succeeded on the grounds that the line manager would not have dealt with a non-female condition in the way he approached hers.  In addition, evidence showed that if a male employee was suffering from similar symptoms, they would have been treated in a different manner.

Davies v Scottish Courts and Tribunals Service (2018): 4104575/2017

This case is the first Employment Tribunal decision regarding menopause won on the grounds of disability discrimination.

The Claimant, Ms Davies, was employed as a Court Officer.  She had suffered severe menopause symptoms for almost three years; including being severely anaemic due to the heavy bleeding, and felt “fuzzy”, emotional and lacking in concentration at times. Ms Davies informed her two line managers of her condition and that she was being put on HRT.  She also began taking a medication called Cystopurin that had to be dissolved in water.

One day, Ms Davies returned to her desk and found her jug of water, which she used to dissolve the medication missing.  She saw two male colleagues drinking the water and alerted them that it may contain medication (it later transpired it did not).  The Defendant conducted an extensive health and safety investigation, and Ms Davies was dismissed on the grounds of gross misconduct.

The Tribunal held that Ms Davies had been unfairly dismissed.  With regards to disability discrimination, the Tribunal asked the question: “what caused the dismissal of the Claimant?”  The reason for the dismissal was the conduct of Ms Davies.  She was affected by her disability insofar as her condition caused her to be confused and forgetful about whether she had taken her medication and whether she had put it in the water jug.  This situation caused her to advise the two men they had consumed water containing her medication. It also resulted in anxiety and to react to the situation by raising her voice. The Tribunal was entirely satisfied there was a clear causal link between the Claimant’s disability and her conduct.

The Defendant argued that it had a legitimate aim; it needed to have honest and trustworthy staff.  It was submitted that the dismissal of the Claimant was a proportionate means of achieving this legitimate aim.  However, the Tribunal ruled that although the having honest and trustworthy staff was a legitimate aim, dismissal, in this case, was disproportionate as the matter could have been dealt with by other means, such as a verbal or written warning.

In summary

Society is always in a state of flux.  The reason menopause is coming to light as an issue for employers now is that: a) people are enjoying good health for longer and are therefore remaining in work, and b) there are simply more women in the workforce.  Employment law has always been at the forefront of socio-economic change, and it is likely that in the future, menopause will be specifically protected in the same manner as pregnancy and maternity.  In the meantime, it is vital that employers are aware of the condition and adapt their HR policies to take menopause into account.

If you would like to discuss any employment matters, please contact Ann-Maree Blake or another member of the Employment Team