Why employers need to be open about the menopause

Pam Loch explores two discrimination cases involving the condition, and looks at what HR can do to support women experiencing symptoms

The menopause is often cited as the ‘last taboo’ in the workplace, with three in five working women between the ages of 45 and 55 saying it has a negative impact on them at work. The most recent ONS statistics show that women over 50 are increasingly working part time, or more flexibly, rather than retiring and as such employers can no longer avoid the subject.

The menopause normally occurs among women between the ages of 45 and 55. However, menopausal symptoms can be experienced for a number of years. While the average age for women in the UK to undergo the menopause is 51, some women can experience premature menopause before the age of 40 and it can also be as a result of surgery, illness or treatment (eg chemotherapy). 

These symptoms can have a significant impact on a woman’s performance at work. Mood disturbances such as anxiety/depression, memory loss, panic attacks, loss of confidence and reduced concentration can affect productivity. Disturbed sleep can make women tired and irritable, which can impact on how they interact with others in the workplace. Physical effects like headaches, muscle and joint stiffness, and recurrent UTIs can also affect a woman’s performance.

A sudden change in a woman’s mood or communication with others, or a lack of concentration leading to errors, could be misconstrued as a performance management issue and lead to dismissal. Inappropriate comments or jokes in the workplace about a woman’s age, mood swings or sweat patches could lead to grievances and claims against colleagues, which an employer can be held vicariously liable for too. 

Without an understanding of the cause of the symptoms, employers could risk losing otherwise high-performing members of the team and could also be exposing themselves to discrimination claims against their business. The leading cases on this discrimination evidence this:

Sex discrimination

in Merchant v BT (2012), Mrs Merchant was subject to performance management processes, and provided a GP letter to her employer stating that she was menopausal, and that this could “affect her level of concentration at times”. Her manager did not follow BT’s internal process and did not obtain a medical assessment before dismissing her. He relied on his own knowledge of menopausal symptoms. Merchant brought claims for unfair dismissal and direct sex discrimination, which the employment tribunal upheld. 

Disability discrimination

A disability is described by the Equality Act 2010 as a “physical or mental impairment which has a substantial and long-term adverse effect on day-to-day activities”. In Davies v Scottish Courts and Tribunals Service (2018), Mrs Davies was menopausal and was found to have been unfairly dismissed when, despite reasonable adjustments being in place, they accused her of lying when she couldn’t remember if she put her medication into a jug of water, which was drunk by two male colleagues. The judge determined the employer failed to take into account that her behaviour was “affected by her disability” when making the decision to dismiss her. 

What can employers do? 

There is a fear of discussing ‘women’s health’ issues that needs to be addressed through proper equality and diversity policies and training. Considering adjustments that can be made in the workplace to help women manage their symptoms more effectively – such as desk fans, allowing more toilet breaks and improved access to water – can help without being a burden on employers. Bullying and discrimination policies should also provide guidance on unacceptable language or ‘banter’ around the menopause and age. 

The most important thing for businesses to do is not to jump to conclusions about a change in performance that could be down to symptoms of the menopause. Armed with an understanding of the symptoms, managers will be better equipped to spot them and make adjustments to help staff cope more effectively. If employers are in any doubt about the potential causes of a change in behaviour or performance, they should seek expert advice before making rash decisions that could result in successful claims against them. 

Pam Loch is a qualified employment lawyer and managing director of Loch Associates Group