The menopause has always been a sensitive subject. However, thanks to a few high-profile mentions and a recent government enquiry, it is now something that is starting to be better addressed by employers and the law.

Impact of the menopause on employee performance

The menopause generally affects women between 45 and 55 years of age, although it can happen earlier or later, with the symptoms lasting about five years.

It should be noted that some people may have to go through surgical menopause, which can have its own complications. It can also affect employees who are trans or intersex.

Everyone’s symptoms will be different but can vary across a range of physical and mental difficulties. These may include:

• stress and anxiety
• memory loss
• difficulty concentrating
• headaches
• fatigue
• difficult periods
• an increased risk of other health issues.

The menopause and the law

There is no one specific law or rule that deals with the menopause and an employee’s rights. However, the challenges that arise as a result can fall under other areas of the law.

Direct discrimination

It is against the law to discriminate against anyone due to a protected characteristic. This includes:

• age
• gender reassignment
• being married or in a civil partnership
• being pregnant or on maternity leave
• disability
• race – including colour, nationality, ethnic or national origin
• religion or belief
• sex and sexual orientation.

Discrimination occurs if an employee is put at a disadvantage and treated less favourably due to one of these characteristics.

Although the menopause is not listed as a protected characteristic, it may fall within one of the other characteristics, primarily as an age- or sex-related issue.

Can the menopause amount to a disability?

An employee has a disability if they have a ‘physical or mental impairment’, and the impairment ‘has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities’.

There have been tribunal cases which have held that the symptoms caused by the menopause could amount to a disability. Whether it does will nearly always depend on the precise circumstances of each case.

Reasonable adjustments

Employers should bear in mind the need to make reasonable adjustments for an employee with a disability.

In the case of the menopause, this could be something as simple as ensuring the employee has easy and discreet access to a lavatory throughout the day or ensuring extra breaks are allowed.

As an employee struggling with the menopause, it is a good idea to discuss matters with your employer to try and see what adjustments could be made to assist.

Indirect discrimination

Employers and employees should be aware that inappropriate behaviour directed towards someone going through the menopause, e.g. in the form of ‘banter’ about the condition, could amount to harassment or sexual harassment.

Capability

The law sets out a number of potentially fair reasons for dismissal which include capability or performance, provided the dismissal was reasonable in the circumstances, and the individual was dismissed following reasonable investigative and dismissal procedures.

Common symptoms of the menopause include brain fog, memory loss and difficulty concentrating, which may have the potential to affect an employee’s performance.

However, where the employee is struggling with menopause-related symptoms, using these as grounds for dismissal may be deemed as unfair.

Health and safety of employees

All employers have a duty of care to ensure the health, safety, and welfare of their employees at work.

The menopause is a health and welfare issue. Employers should therefore consider the mental and physical impact of the working environment.

Employers may need to improve ventilation and workplace temperatures, consider flexible working, allow more breaks, or reduce the pressure created by targets or deadlines.

Workplace policy

ACAS has published menopause guidance which employers should consider as part of creating a menopause policy.

Aspects to consider should include:

Carrying out a risk assessment

This should be done in respect of the health, safety, and wellbeing of employees and making reasonable adjustments as appropriate.

Workplace culture

Develop and promote an open, understanding, and tolerant culture, which makes it clear that inappropriate banter won’t be tolerated. This may involve training employees to understand the impact the menopause can have and ensure it is dealt with sensitively.

Finding clear and discreet advice about menopausal issues in the workplace

The rules surrounding menopause in the workplace are not straightforward. The issue touches upon several associated areas of employment law, which can be confusing to navigate without professional guidance.

At Springhouse, our team of employment law solicitors can provide their expertise across a range of issues that may make going through the menopause difficult for women in the workplace.

Whether you are the victim of direct or indirect discrimination, or have found yourself facing capability proceedings and potential dismissal due to your symptoms and a lack of support; our team has the knowledge and experience to help you navigate your problems.

If you would like an initial conversation about your circumstances, we are ready to listen. Get in touch today.