In recent months, we have seen the subject of the menopause catapulted into the limelight with an Oscar winning Netflix documentary (“Period. End of Sentence”), Davina McCall, Penny Lancaster and Mariella Frostrup campaigning hard to help break the taboo of the menopause, Government action to cut the cost of repeatable HRT prescriptions and setting up a new Menopause Taskforce, and so on. As a result, employers are beginning to think about how best to create menopause-friendly workplaces and help to break down the culture of silence, embarrassment and taboo surrounding periods and the menopause.
In this week’s blog, I pull some information together to provide a useful resource for those employers who are wondering what steps they could take to create a menopause-friendly workplace.
What is the menopause?
The Chartered Institute of Personnel and Development (“CIPD”) sets out a really useful guide which sets out the following key points:
- The menopause is a natural process when a woman’s oestrogen levels decline, she stops having periods and it marks the end of her reproductive life, most typically occurring between the ages of 45 and 55, but around 1 in 100 experience it before the age of 40 (known as premature menopause). Please note that although this blog talks about women, transgender or intersex employees may also be affected by the menopause.
- Women can go through a wide range of physical and psychological symptoms associated with the menopause transition which can last for several years; symptoms can be fluctuating and be felt to varying degrees by different women. Some of the most typical symptoms include: psychological issues such as mood disturbances, anxiety and / or depression, memory loss, panic attacks, loss of confidence and reduced concentration, hot flushes, sleep disturbance, night sweats, irregular or altered periods, muscle and joint stiffness, recurrent urinary tract infections (UTIs) including cystitis, headaches, weight gain, heart palpitations, skin changes and reduced sex drive.
- The “perimenopause” refers to the phase leading up to the menopause, when a woman’s hormone balance starts to change and they may start to experience some of the symptoms mentioned above.
- “Post-menopause” refers to the stage after menopause when a woman has not had a period for 12 consecutive months.
Menopause in the workplace:
Menopausal women are reportedly the fastest growing demographic in the workforce and therefore more women than ever will experience menopause transition whilst working. A 2019 survey conducted by the CIPD found that three in five menopausal women were negatively affected by their symptoms at work: 65 per cent said they were less able to concentrate, 58 per cent experienced more stress and 52 per cent felt less patient with clients and colleagues. Recent research by The Fawcett Society highlights that for almost half of employees experiencing the menopause, it makes them less likely to want to progress in their role and for a quarter it is the reason they are more likely to retire early (in turn negatively impacting on the diversity and inclusion efforts of organisations).
Research carried out by the Government Equalities Office highlights the negative effects which menopause symptoms can have on women’s quality of working life and performance at work including reduced engagement with work, reduced job satisfaction, reduced commitment to the organisation, higher sickness absence, and an increased desire to leave work altogether. The evidence suggests that symptoms might also have negative effects on time management, emotional resilience, and the ability to complete tasks effectively.
Potential legal implications of mis-managing employees with menopausal symptoms:
If an employee is treated less favourably or put at a disadvantage at work because of their menopause symptoms, they may have discrimination claims under the Equality Act 2010 related to sex, age, and / or disability (and, in some cases potentially gender reassignment), as well as a claim of unfair dismissal and constructive unfair dismissal. Other health and safety related legislation may also be relevant, including the general duty on employers to protect the health, safety and welfare of employees and the requirement to undertake risk assessments and prevent employees being exposed to risks.
Over the years, there have been several successful cases brought by women who have been unfairly treated at work due to issues connected with the menopause. In Merchant v BT plc (2012), a dismissal of a poorly performing female employee who had indicated that menopause symptoms were adversely impacting her capability amounted to direct sex discrimination and unfair dismissal. The employer had failed to take the menopause seriously as an underlying health condition and failed to follow the normally expected procedure.
In a more recent case, Ms M Rooney v Leicestershire City Council (2021), the Employment Appeal Tribunal held that an employment tribunal had erred in striking out an employee’s disability and sex discrimination, harassment and victimisation claims. Ms Rooney’s case was about the Council’s treatment of her in relation to her menopausal symptoms.
In the news:
On 29 October, there was a second reading debate of the Menopause (Support and Services) Bill. This Bill looks to exempt hormone replacement therapy (“HRT”) from NHS prescription charges in England and a cross-Government strategy on menopause support and services to be formulated (this will include consideration of workplace policies, including on flexible working hours, and adaptations to working environments, to support women to continue to work through the menopause).
The Women and Equalities Committee launched an inquiry (which is now closed and we are awaiting the results of that inquiry – see mention of this in an earlier blog piece) into the extent of discrimination faced by menopausal people in the workplace, and will investigate how Government policy and workplace practices can better support those experiencing the menopause. The chair of the Women and Equalities Committee (Caroline Nokes) has said that she would not rule out making changes to the Equality Act 2010 to protect menopausal women who are discriminated at work (as already mentioned, currently the protection would be under the protected characteristics of age, sex, disability and gender reassignment) and Carolyn Harris MP has also indicated that “there should be legislation that every workplace has a menopause policy, just like they have a maternity policy”.
What employers can do to create a menopause-friendly workplace:
There is certainly no shortage of ideas here! Whilst researching this article, I came across countless examples of employers taking positive steps: such as, Asos who will allow staff flexible work and paid leave during the menopause and the high street chain Timpson offering to pay for hormone replacement therapy prescriptions for staff going through the menopause.
It has to be emphasised that a one-size fits all approach won’t work and so one-to-one discussions are needed to help identify how best to support each affected employee. With that in mind, some examples of what can be done to support menopausal employees include:
- Training sessions and dedicated support systems which can help raise awareness about the menopause, and in turn will help to address the stigma surrounding it.
- Introducing an occupational health campaign to increase staff awareness of the difficulties women might experience. Perhaps also providing specialist advice to women about their menopause-related symptoms.
- Implementing a menopause policy to give women the tools they might need to approach managers about their symptoms. As with any policy, it shouldn’t be a tick box exercise and should be actively incorporated into the culture of the organisation.
- Looking at the absence policy so that any absences due to menopause symptoms are recorded as caused by an ongoing health issue as opposed to sickness (similar perhaps to disability or pregnancy-related absence).
- Making working life more flexible for women suffering from symptoms (for example, reducing workload, allowing flexible working, ensuring excessively long hours are avoided).
- Thinking about workplace environments, some ideas include: access to fans and good ventilation, ability to control the office temperature, clean, well-equipped and comfortable toilet facilities, cold drinking water and quiet workplace rest areas.
There is a wealth of useful information if you want to read more and here are a few links which might be helpful:
The British Menopause Society: Menopause in the Workplace
If you require further information about anything covered in this blog, please contact Alice Parker, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, November 2021