Today, Monday 18 October, is World Menopause Awareness Day.

Menopause has been suggested as a potential reason that might be driving older women (as well as transgender and non-binary employees) to leave the workforce. If left unsupported, menopausal employees will be leaving at the peak of their experience, which will likely have an impact on business productivity and C-suite diversity.

The Chartered Institute of Personnel and Development reports that research from Bupa has shown that almost one million women have left their job because of menopausal symptoms, while others are forced to take long-term absence from work to manage their symptoms.

According to Business in the Community’s Menopause in the Workplace toolkit, around 80% of women experience menopausal symptoms that interfere with their quality of life and 25% of women describe their symptoms as being severe.

To add to the complexity, many of those suffering from menopausal, or perimenopausal symptoms are misdiagnosed or must wait a significant period of time before being given adequate health advice. This can lead to time off work, which can be viewed suspiciously and negatively by an employer that may not realise this complexity, and that may not be informed of the details by their employees, who will often be too embarrassed to speak about it.

Newson Health reported in 2019 that:

• One-third of women surveyed had to wait at least three years before their perimenopausal symptoms were correctly diagnosed.
• 59% of women surveyed with menopausal symptoms visited their GP more than twice, and 18% more than six times, before they received adequate help or advice.
• Although the menopause is not a protected characteristic under the 2010 Act, employees can still bring a variety of possible claims for unfair treatment or discrimination due to them experiencing the menopause or perimenopause or suffering from menopausal symptoms.
• Potential claims could be for:
  • Unfair dismissal and constructive unfair dismissal.
  • Direct or indirect sex discrimination.
  • Indirect or direct disability related discrimination.
  • Sex, disability and age-related harassment.
  • Victimisation.
  • Failure to make reasonable adjustments to the workplace, if conditions amount to a disability under the 2010 Act.
  • Breach of the Health and Safety at Work Act 1974 for failing to provide a safe workplace.
  • Indirect or direct age discrimination.

Merchant v BT PLC is notable as the first widely reported employment tribunal case relating to menopause (ET/1401305/11). Ms Merchant successfully brought claims of direct sex discrimination and unfair dismissal following dismissal for capability reasons. She argued that the reason for the deterioration in her performance related to health issues around her menopause, which caused her to experience lapses in memory and performance. Ms Merchant had been employed for a little over 24 years when she was dismissed and there was no evidence of any earlier performance concerns. Interestingly, Ms Merchant did not disclose that she was going through the menopause until the very end of the performance improvement procedure, when she produced a letter from her GP. The disciplinary manager did not conduct any investigation into whether or not Ms Merchant’s symptoms caused the performance issues or obtain any medical advice and relied instead on his limited knowledge of his wife and HR adviser having gone through the menopause, which he thought was sufficient. The manager was unsurprisingly criticised for this by the tribunal.

Merchant is a good reminder to employers that any new evidence brought up in a disciplinary meeting should be investigated thoroughly before a decision to dismiss is made. If a health issue is raised, medical or occupational health advice should be obtained. As the impact of menopause in the workplace becomes better understood, it is hoped that greater education and awareness of the menopause and its symptoms will mean that managers will take the condition as seriously as any other health condition. Employers can take steps to minimise the risk of claims and help retain this demographic in the workplace.

There has been a rise in menopause cases since Merchant. Research by Menopause Experts Group suggests that there were 16 tribunals citing menopause in 2020, up from six in 2019 and five in 2018, perhaps reflecting an increased awareness of rights. Each case will, of course, turn on its facts and depend on the actual issues suffered.

For claims for disability discrimination and a failure to provide reasonable adjustments, the link between the menopausal symptoms and the impact on the individual’s day to day activities will be key in establishing whether or not the menopausal symptoms are a disability. In D Daley v Optiva, a tribunal held that Mrs Daley’s menopausal symptoms constituted a disability under the 2010 Act (ET/130802074/2019).

A recent consultation, which closed on 17 September 2021, was initiated by MPs to consider whether the law goes far enough to protect individuals going through the menopause. Among other issues, MPs are consulting on the economic impact of menopause discrimination, whether the current legislation should be amended and how people who experience the menopause but do not identify as women should be supported.

In his re-election campaign manifesto, London Mayor Sadiq Khan mentioned introducing a menopause policy, which may include menopause leave to diminish the stigma of people taking sickness absence due to the menopause. While this may be difficult to operate in practice, employers that wish to take steps to support employees going through the menopause could consider recording sickness absence related to menopause in a different way to other absences, and not penalise employees for menopause-related sickness absence.

For more advice, please contact Irina Polyakova on 01484 821 300 or at irinapolyakova@eatonsmith.co.uk