What employers need to know about the menopause

Background

In a recent TUC survey of 4,000 women, 85% said the menopause affected their working life. Until recently, many women maintained a silence around their experiences of the menopause. This was partly due to a fear of ageism, of losing jobs and status if they admitted to the brain fog and flushes experienced. It was also due to the perception of the menopause in society. In May 2018, the deputy Governor of the Bank of England used the word “menopausal” to describe the country’s sluggish economy. While it was good to read the backlash and criticism of his choice of language it is clear that we have a long way to go.

A 2019 survey conducted by BUPA and the Chartered Institute for Personnel and Development (CIPD) found that three in five menopausal women- usually aged between 45 and 55 – were negatively affected at work. Many thousands of women in the UK left their jobs because of menopausal symptoms. This could mean that women are leaving businesses “at the peak of their experience and expertise” which will “impact productivity” in organisations. Women in this age group are also likely to be suitable for senior management roles, and so their exit can lessen diversity at executive levels. When considering the importance placed on closing the gender pay gap, women leaving the workplace does not assist.

House of Commons Women and Equalities Committee enquiry – "Menopause and the Workplace"

UK Parliament Committees – Menopause and the workplace

The Guardian – Equality laws could be changed to protect women in menopause, says MP

Legal claims

There has been an increase each year in Employment Tribunal cases arising out of the menopause. From six cases in 2019 to 16 in 2020. Such cases are rarely appealed (we are aware of 2 such appeals to date). We consider some of these below.

Rooney V Leicester City Council (2021)

This is a very recent EAT decision. Mrs Rooney was a childcare social worker employed by the Council. She resigned her role and brought two claims against the Council. In the first claim she was represented. The lawyers, without her consent accepted that she was not disabled by reason of her work related stress and menopausal symptoms. When she found this out the following day, she issued a second claim (acting in person) for disability and sex discrimination, harassment and victimisation with regard to the Council’s treatment of her in relation to her menopausal symptoms. She alleged that she had suffered from the physical, mental and psychological effects of the peri-menopause and menopause for two years and these symptoms included insomnia (causing fatigue and tiredness), light-headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines and hot flushes. The symptoms had a negative impact on her life to the extent that she had struggled physically and mentally to cope. She had been prescribed HRT and she was being treated by a consultant at a specialist menopause clinic.

She had been referred to Occupational Health, but her request to see a female doctor had been ignored and she said that she felt embarrassed talking about her symptoms and treatment by male managers with a male doctor.

She also said that when she complained to a male manger about hot flushes he said that he also got hot in the office and dismissed the fact that it was a menopausal symptom.

There was a preliminary hearing to consider whether her claims should be struck out and/or a deposit paid. The ET held that Ms Rooney was not suffering from a disability in relation to her menopause symptoms, anxiety and depression and her disability discrimination claim was dismissed, along with her claims of harassment and victimisation.

She appealed to the EAT. The EAT allowed the appeal and remitted the claims to be considered by a fresh Employment Tribunal. They held that the ET had erred in law in holding that she was not a disabled person at the relevant time and noted that the judgment recorded that in her evidence Mrs Rooney had indicated that her symptoms included hot flushes and sweating, palpitations and anxiety, night sweats and sleep disturbance, fatigue, poor concentration, urinary problems and headaches. She also stated that her symptoms led to her forgetting to attend events, meetings and appointments, losing personal possessions, forgetting to use the handbrake on her car and forgetting to lock it, leaving the cooker and iron on and leaving the house without locking doors and windows, spending long periods in bed due to fatigue and exhaustion, and experiencing dizziness, incontinence and joint pain.

The EAT held that there was no explanation as to how the ET had concluded that this evidence, which it did not reject, did not demonstrate an effect on Ms Rooney’s day-to-day activities that was more than minor or trivial.

Davies v Scottish Courts and Tribunal Service SCTS (2018)

Ms Davies was going through the menopause, which left her with symptoms such as bleeding heavily, feeling fuzzy, emotional and she was severely anaemic, which affected her concentration levels. After referral to a clinic she undertook hormone replacement therapy which slightly helped with the bleeding. When Ms Davies’ managers became aware of her condition they made helpful adjustments to her working practices, such as working in rooms near toilet facilities and no longer covering jury courts.

In February 2017, Ms Davies was prescribed medication, to be diluted in water and then drunk. She took the medication to work with her and put it in a jug of water on her desk in the courtroom to drink throughout the day. There was an incident where her personal belongings on the desk had been moved and her jug of water was empty. She noticed two members of the public in the public area of the court drinking water. She approached the men and asked where they got the water from and they told her the clerk had given it to them. They asked her why she was concerned. She informed them that her medication was in the water (but she could not remember if she had put it in yet) but due to the taboo surrounding the menopause she refused to say what the medication was actually for. One of the men became quite irate and the situation escalated. The matter was reported to the health and safety team.

They launched an investigation, took medical advice about the risks of the two men taking the medication and they subsequently attended the homes of the two men to advise them to seek medical advice. The following day the Claimant was asked to give an account of what had happened and she confirmed that she had placed the medication in the jug. She was then interviewed as part of the health and safety investigation, although by that time the health and safety investigator had established that there was no medication in the water, as it would have turned the water pink/tasted of cranberry and the water drunk by the two men was clear and had no such taste.

A health and safety report was prepared which dealt not only with the health and safety issues but went  on to state that Ms Davies must have clearly known that the medication was not present and showed no remorse for her actions. It made recommendations regarding the Claimant including that she had not shown the values and behaviours of the Respondent and had behaved inappropriately and that she had breached the health and safety legislation. The report recommended disciplinary action against her.

Her employer held a formal disciplinary procedure, during which an occupational health report was obtained. The report found that Ms Davies’ menopause caused, in amongst other things, amnesia. Despite this, the disciplinary found that Ms Davies had knowingly misled the men into believing her medication was present. Ms Davies was dismissed, and the dismissal was upheld on internal appeal. Her employer considered that she had lied and brought the court into disrepute when she advised two colleagues in court that they may have drunk water containing her medication.

Ms Davies brought claims to the Employment Tribunal for unfair dismissal and discrimination arising from a disability. It is important to note that menopause is not of itself a disability – however, in this case, due to the severe symptoms it was agreed by all the parties that Ms Davies was disabled.

The Employment Tribunal upheld Ms Davies’ claims, finding in particular that:

• The health and safety report went beyond its remit and the comments about Ms Davies tainted the disciplinary process, resulting in it being unfair;
• The disciplinary panel did not take her memory loss, confusion and stress into account in deciding whether she knew the medication was present; and
• The dismissal was because of the confusion and stress arising from her disability.

Her employer was unable to justify the treatment as being a proportionate means of achieving a legitimate aim (having an honest and trustworthy staff).

A v Bonmarche Ltd (2019)

A submitted a claim of age and sex discrimination and claimed she had been subjected to harassment and abuse by her manager based on her being a female going through the menopause.

The claimant was a senior supervisor with a lengthy period of service. Her manager started a bullying campaign, ridiculing her as she was going through menopause.

Her manager would often make comments regarding her age and being menopausal in front of other staff as well as customers. Other members of staff who were younger than her would laugh at the manager’s remarks. The manager also refused to make any adjustments to the workplace (such as reducing the temperature of the store) when they became aware of her condition. She suffered a breakdown, having a serious panic attack requiring paramedics to be called. Following a period of absence it was agreed with HR that she would return to work  four hours a day as part of phased return, despite this her line manager rostered her to work a full week, and said if she wanted to work part time she would have to use holiday. He also told her she was “pushing her luck” when she asked to leave the shop floor to have a drink to take her medication. As a result she resigned and left her employment.

After resigning she suffered a substantial reduction in her mental wellbeing. She could not leave the house and suffered ongoing issues with anxiety caused by her no longer having an income and being able to pay her bills.

The Employment Tribunal found in A’s favour and also held that it was constructive dismissal as she resigned as a result of the manager’s treatment of her. She was awarded £27,975 and £18,000 of that was injury to feelings due to the course of conduct over a substantial period.

Donnachie v Telent Technology Services Ltd (2020)

Ms Donnachie had found her menopausal symptoms, particularly hot flushes accompanied by palpitations and anxiety, had become intrusive and disruptive. She was also experiencing disturbed sleep. Her GP provided a letter stating that she presented to him with typical features of menopause which were causing her significant distress and that he had seen her multiple times. Despite being prescribed HRT patches by her GP which improved her symptoms, they still persisted, particularly when she was under pressure.

A preliminary hearing was brought to determine whether the Ms Donnachie was a disabled person in accordance with the Equality Act 2010 at all relevant times because of symptoms of menopause (including anxiety and problems with concentration); and/or Raynaud’s Syndrome.

Her employer argued that she merely suffered from “typical” menopausal symptoms and therefore the impact on her was not substantial enough to amount to disability.

In his findings, the Employment Tribunal judge said: “I see no reason why in principle, typical symptoms cannot have the relevant disabling effect on an individual. I have little hesitation in concluding that the effect of her menopausal impairment on her day-to-day activities is more than minor or trivial. The range of her daily activities and her ability to undertake them when she would wish, with the rhythm and frequency she did, is markedly affected.”

The Employment Tribunal had found Ms Donnachie to be disables by reason of menopause or symptoms of menopause but not disabled by reason of Raynaud’s syndrome.

A Kownacka v Textbook Teachers Ltd (2021)

Ms Kownacka, who had breast cancer, was successful in her claim for harassment related to disability.

Having discovered a lump in breast, she was diagnosed with breast cancer and needed surgery. She was also told she’d be forced into menopause aged 37 and no longer able to conceive children.

Ms Kownacka and the managing director agreed that she would be off work for two weeks following her operation and that she would be given full pay during her sickness absence: more than the five days set out in her company contract. However, the next day, the branch manager allegedly overheard her tell a client on the telephone that she would not be returning to work until September 2018 which caused concern because this was closer to 12 weeks’ absence rather than the agreed two weeks. The branch manager called her after work and asked her to provide paperwork relating to the 12 weeks’ absence she had been overheard discussing.

She alleged that in conversations that followed, the managing director had said: “It’s not like you’re going to die, what do you need that amount of time off for, it’s only early stages of cancer, it’s no big deal.’ Comments were also made calling her operation as a “free boob job.” She was told that she was taking her condition “too seriously” and that being able to conceive children was “no big deal.”

Following these comments she resigned in December 2018.

The Employment Tribunal found in her favour in relation to harassment, and found her employer showed a lack of insight, sensitivity and empathy which violated Ms Kownacka’s dignity and created an offensive environment.

Harassment has to be linked to protected characteristic. The manager had not intended to be offensive but intention does not need to be proved in a harassment claim.

Comment

These cases highlight the difficulty of having to bring Employment Tribunal cases under one equality criteria. This raises questions over the way in which the Equality Act 2010 is implemented as section 14 of the Act contains a provision, which is still not in force, to cover direct discrimination on the basis of up to two combined characteristics, for example in the case of menopause this might be gender and age. Such legislation for “dual discrimination” would benefit not just menopausal women but would address wider intersectionality.

Employers should be wary that claims of this nature may be brought. These claims are not only costly in terms of compensation awarded but legal fees may also be incurred and damage to reputation too. In relation to menopausal symptoms, employers should watch out for situations which may amount to indirect discrimination, harassment, victimisation or a failure to make reasonable adjustments for the employee.

It is likely that we will see an increasing number of successful claims from women going through the menopause (and from women who present as male) but employers could tackle the matter proactively by taking a number of steps:

• The workforce, both men and women can be educated about menopause. This could be carried out through:
  • Training on health and wellbeing for which health and safety officers have a key part to play;
  • Initiating occupational health campaigns;
  • Training managers and discussing the topic at management meetings; and
  • Expressly mentioning menopause in diversity and equality training sessions.
• Informal support groups could be set up at work such as workplace networks, online support groups and helpline numbers provided;
• A sickness absence policy could specifically address the issue of menopause and its symptoms and their effect;
• Employers can improve the working environment including access to fans, good ventilation, the ability to control temperature, having clean and comfortable toilet facilities near work stations with appropriate sanitary disposal bins and feminine hygiene products and also have access to female-only showers if possible.

There is extensive guidance available for employers including from ACAS, available here.

The CIPD has prepared guidance for line managers, which you can read here.

This article has been co-written by Paula Kathrens and Sara Trevor.