Supporting employees with menopause in the workplace

By Nicola Smyrl

Partner

23 October 2023

Article Insights

Government research indicates that women over the age of 50 are the fastest growing group in the workforce, with approximately 8 in 10 women over the age of 50 in regular work. The average age that a woman (and other people who have a menstrual cycle) will go through menopause is 51.   

As more employees go through the menopause during their working lives, and issues relating to menopause receive increased attention in the press, employers need to be aware of the steps that they ought to be taking to effectively manage and support staff experiencing menopause.

What are the symptoms of the menopause?  Why are these relevant to employers?

According to the NHS, common symptoms associated with menopause include hot flushes, mood swings, anxiety, difficulty concentrating, migraines, fatigue and difficulty sleeping.

In 2019, the Chartered Institute of Personnel and Development surveyed 1,409 women who were experiencing menopause symptoms. 59% said that menopause was having a negative impact on them at work and only a third felt supported by their manager.  In some cases, this caused employees to make plans to leave their job because they felt unable to manage the demands of their role.

Employees who leave their job due to menopause may cause practical issues for an employer, an employee at this stage of their career is likely to have significant skills and experience which may be important to an employer.  Additionally, failing to support an employee who is experiencing menopause symptoms may also lead to legal issues, including claims in the employment tribunal.

What are the potential legal issues?

Unfair dismissal

It is not uncommon for employees to resign in response to what they perceive as a lack of support in the workplace regarding menopause.  In such cases, the employee may bring a claim for constructive unfair dismissal if they have been employed for 2 years or more.  It is possible that a lack of support may amount to a fundamental breach of the implied term of mutual trust and confidence, leading to a successful claim.

Where an employer dismisses an employee for a reason such as poor performance, menopause symptoms may be a mitigating factor and must be considered in a reasonable way.  Dismissals which fall outside of the reasonable range of responses available to an employer will  be unfair.

Menopause and discrimination

Currently, there is no legislation that confers protection specifically for the menopause.  Despite calls from the Women and Equalities Committee for better protection, there are currently no proposals for this to change. However, issues relating to the menopause at work may lead to claims for discrimination under the Equality Act 2010.

Disability discrimination – A person will be disabled under the Equality Act 2010 where they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. The employment tribunal has now recognised that in severe cases, menopause may be a disability for employment law purposes.

Where an employee is disabled, the employer may be under a duty to make reasonable adjustments.  For example, in the recent case of Lynskey v Direct Line Insurance Services Ltd (2022), the employer was ordered to pay one of its former workers £64,645 after the Employment Tribunal found it failed to make reasonable adjustments for an employee with menopause symptoms, who later resigned. The employment judge was critical that the employer had been unwilling to recognise the impact of menopause symptoms on the employee’s performance and attendance.

Age and Sex Discrimination  – It may be possible for individuals to show that they have been treated less favourably due to their age, given the close connection between menopause and age.  Additionally, women who are treated less favourably than men can bring a claim of direct sex discrimination. Sex discrimination could arise if menopause symptoms are treated differently from other medical conditions.  In one recent case, an employment tribunal took the view that there had been sex discrimination because an employer did not recognise the impact of the menopause on an employee’s performance when a condition that affected both sexes had or would have been treated differently.

What should employers do now?

Considering the potential consequences of failing to support employees experiencing menopause, it is important for employers to give thought to these issues.

This is also an area that the Government is keen to promote.  In March 2023,  the Government appointed Helen Tomlinson as the first Menopause Employment Champion.  She will work with the Department for Work and Pensions to drive awareness of issues surrounding menopause and work while promoting the benefits for businesses and the economy when women are supported to stay in work and progress,

As an employer, a good starting point is thinking about developing a menopause policy, and training staff and managers on the expectations set out in the policy.  Although there is no legal requirement to do this, having a policy can assist staff and managers on how to recognise and address workplace issues relating to menopause with appropriate care and sensitivity. 

Case law concerning the menopause tends to focus on flexibility and provision of reasonable support to employees affected by menopause symptoms.  It is also clear that employers need to recognise menopause as a medical condition.  ACAS has produced helpful guidance on how to support employees who are experiencing menopause which highlights the importance of an open workplace where staff feel comfortable to discuss menopause and conducting risk assessments to ascertain how an organisation can identify and address menopause related difficulties for staff.

How can Taylor Walton help you? Taylor Walton’s employment law team can assist employers and senior employees with concerns relating to menopause in the workplace, including preparation of a menopause policy, and can be contacted here.

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Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.