• The menopause is a natural part of the aging process that eventually affects all women at some stage in their lives and can affect women in many different ways.

    A recent report from the independent Nuffield Health group confirmed that approximately 13 million women in the UK are either peri- or post-menopausal. It also revealed that one in four of these will experience severe debilitating symptoms during this time.

    Yet despite this, the report acknowledged that women in the UK currently get little support, advice or treatment for hormonal changes and symptoms relating to the menopause.

    To coincide with World Menopause Day on 18 October 2021, we were privileged to welcome Mr Haitham Hamoda, Chair of the British Menopause Society to present at our ‘Menopause Matters: Menopause in the workplace’ webinar.

    The webinar offered an insight into both legal and medical considerations for employers around the menopause. In this article, we summarise the key points and recommendations for employers that were covered in the session.

    How the menopause affects women

    As Mr Hamoda explained in his webinar presentation, the menopause affects every woman differently. Three out of four women experience symptoms, and one in four can experience severe symptoms which can impact their daily lives. In more extreme cases, symptoms may last for up to 12 years.

    For many, symptoms can range from cognitive to physical or psychological. These can include hot flushes, muscular aches, poor concentration, anxiety and headaches.

    Between the ages of 40 and 55, it has been reported that 80% of women experience up to 34 physical and psychological symptoms of menopause, and approximately one in four women suffer severe symptoms.

    Do the effects extend further than those directly affected?

    The simple answer is yes! The symptoms and effects of the menopause can extend further than just the individual going through the experience. It could have an indirect or direct impact on colleagues, managers, partners, spouses, family and friends.

    Menopause: why should employers take notice?

    There are 3.5 million women over 50 in the workplace in the UK. With one in eight women in the British workforce being over 50, this group are the fastest growing group of employees.

    Despite this, it is fair to say that most workplaces and working practices have not been created with the purpose of accommodating women who are going through the cycle. However, effectively supporting female staff going through the menopause can have numerous positive effects for your business, not just for the employees themselves, but for the smooth operation of your business.

    Providing appropriate support for women going through the menopause has shown to increase engagement and loyalty, reduce sickness absence and employee turnover.

    As we covered in more depth in the webinar, it is worth bearing in mind that not addressing these issues has the potential to lead to other costly or disruptive issues for your business. As well as staff members taking extensive periods of sick leave, this could include loss of talent, knowledge and experience, if women affected decide to leave the workforce.

    What’s more, supporting an age and gender inclusive workplace helps you to meet your legal obligations, supporting good health and thus protecting against potentially successful discrimination claims.

    Menopause and the law – information for employers

    Currently there is no specific legal protection covering the menopause itself. However, if an employee is put at a disadvantage or treated less favourably because of their symptoms, then this could be found to be discriminatory and give rise to legal claims.

    Typical claims brought by employees against their employer might include unfair dismissal or constructive unfair dismissal and, under the Equality Act 2010, age, sex and disability discrimination claims. This includes direct and indirect discrimination, harassment and specifically in relation to disability discrimination, discrimination arising from a disability and/or a failure to make reasonable adjustments.

    To bring a discrimination claim there is no requirement to have a specific period of continuous service and no limit on compensation that might be awarded. This is unlike an unfair/ constructive unfair dismissal claim, which both require an employee to have over two years’ continuous service to bring a claim. For these, compensation is capped at the lower of 52 weeks’ gross pay or the maximum statutory amount, currently £89,493. It is therefore often more attractive for an employee to bring a discrimination claim.

    The Health and Safety at Work Act 1974 makes it a legal duty for employers to ensure everyone’s health and safety at work. This includes specific risks to menopausal women. In addition, the Management of Health and Safety at Work Regulations 1999 creates a duty for the employer to carry out a suitable and sufficient risk assessment of workplace risks to the health and safety of employees.

    There is an argument that women going through the menopause are a group particularly at risk. Taking it further, this could also include those who are affected by their partners’ menopause.

    Employment tribunal claims

    According to recent headlines there has been a growing number of tribunal claims referencing the menopause in support of unfair dismissal and discrimination claims.

    During the webinar, we referenced recent data supporting this. The data confirms there were five cases referencing menopause in 2018, six in 2019, 16 in 2020. There have also already been ten cases in the first half of 2021.

    Based on this evidence, we expect these numbers to increase further, as women begin to feel more comfortable citing the menopause and to challenge employers who do not understand or support them if they are suffering with menopause in the workplace.

    We currently only have decisions to reference which have been made in the employment tribunal. Such decisions are not binding on other courts, but are a good indication as to how issues might be determined.

    In the webinar, employment specialist and webinar speaker Louise Brenlund referred to several cases during the webinar where claims were rejected, and explained the reasons for these decisions.

    In addition, Louise covered key cases that had been successful. These included D Daley v Optiva S/4104575/2017 and M Davies v Scottish Courts and Tribunal Service 1308074/2019.

    One of the most recent successful cases is that of Ms A Kownacka v Textbook Teachers Limited 2602697/2018. The tribunal ruled in favour of the claimant in relation to harassment related to disability for comments made by a female manager. The comments included, among others, that “it was no big deal” when the claimant was diagnosed with breast cancer and forced into menopause at 37, and subsequently was no longer able to conceive children.

    Please do view the webinar and accompanying presentation slides for more detailed information on these cases.

    Actions for employers

    As an employer or manager of any business it is important to be aware that the menopause and its symptoms can affect any of your female staff at any time.

    We recommend that if you don’t already have one, introducing and implementing a menopause policy is a good starting point. However, for this to be effective there needs to be a basic knowledge and understanding around the menopause within the workplace so that mangers and colleagues know the symptoms and their effects, and feel comfortable in supporting staff affected.

    We would encourage menopause training sessions for all staff members, particularly those with management responsibility. Training can equip your employees with an understanding of the legal risks and their responsibilities around the menopause, and guidance on what to look out for and how to address the matter supportively.

    How can we help you further?

    Brachers’ Employment team can assist you and your business to create a menopause-inclusive workplace.

    We can assist you by providing legal compliant procedures and policies, and currently offer menopause training sessions to support you every step of the way.

    To talk through your organisation’s specific needs and requirements, book a free 30-minute consultation with our Employment team today.

    Special offer

    The first 10 businesses that book and pay for our menopause training will receive a free Menopause Policy, worth £300. Find out more today.

    This content is correct at time of publication

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