The menopause: legal and practical issues for Irish employers

The menopause typically affects women between 45 and 55 years of age who are often reaching senior positions and/or are well established in their careers. This has been a prominent topic in the Irish media over the past few weeks. Several women recently shared their stories of menopause on RTÉ Radio 1’s Liveline show. This was initially intended to be a section of a single programme but, due to the overwhelming response from listeners, was discussed over a full week of shows. This led to widespread media attention, an array of articles and #menopause trending on Twitter.

Following the recent media coverage, Fianna Fáil TD Niamh Smyth brought a motion before their parliamentary party meeting on 12 May 2021 calling for a campaign to support women experiencing menopause. Health Minister Stephen Donnelly recently told the Dáil that the development of a menopause workplace policy is underway, and that the Department of Health is working on a range of other actions including the provision of specialist support and a national awareness campaign.

What is the menopause?

The menopause is said to have occurred when there have been no menstrual cycles for 12 consecutive months, but a woman can be affected by the symptoms for a long time before then. This perimenopausal period (typically referred to as “going through the menopause”) can last four to six years before the natural menopause.

Surgical menopause is where surgery to remove a woman’s ovaries begins the menopause process, regardless of the woman’s age. Transgender men and people who are intersex or identify as non-binary may also experience menopause and the symptoms that go with it.

Hormones can fluctuate during the menopause, leading to a variety of symptoms such as irregular and/or heavy periods, hot flushes, mood swings, anxiety, difficulty concentrating, migraines, fatigue and difficulty sleeping.

The average age to go through the menopause is 51, but there is a lot of variation. It can happen at any point between 30 and 60 years of age.

What are the practical issues?

In 2019, the Chartered Institute of Personnel and Development in the UK surveyed 1,409 women who were experiencing menopause symptoms. Three out of five (59%) said that menopause was having a negative impact on them at work. Of those who were affected negatively at work, they reported the following issues:

• More than half (52%) said they felt less patient with clients and colleagues.

• More than half (58%) said they experienced more stress.

• Nearly two-thirds (65%) said they were less able to concentrate.

Nearly a third of women surveyed (30%) said they had taken sick leave because of their symptoms, but only a quarter of them felt able to tell their manager the real reason for their absence. Privacy (45%) was the number one consideration for women choosing not to disclose. A third (34%) said embarrassment prevented them from saying why they had to take time off and another third (32%) said an unsupportive manager was the reason.

The need for better support is further highlighted by the fact that more women say they feel supported by their colleagues (48%) when going through the menopause than by their managers (32%).

What are the legal issues?

Issues connected to menopause can lead to claims of sex, age and/or disability discrimination.

Sex discrimination

Women who are treated less favourably than men can bring a claim of direct sex discrimination. The Workplace Relations Commission (WRC) may find direct discrimination if menopause symptoms are treated differently from other medical conditions. For example, an Employment Tribunal in the UK found there was direct sex discrimination in a case where the employer did not consider whether menopausal symptoms were the reason for an employee’s poor performance, when a condition that affected both sexes (or a man suffering similar symptoms) would not have been ignored in the same way.

Employers should also ensure that any policies or practices do not indirectly discriminate against women who may be suffering from menopause symptoms, particularly in cases of performance management. For example, an employee who is finding it difficult to concentrate as a symptom of the menopause may not be able to meet certain performance targets as easily as her colleagues.

Workplace “banter” and jokes regarding the menopause should be treated just as seriously as if they were about any other protected characteristic, as this is targeted at women and so can lead to claims for sexual harassment.

Age discrimination

Given that perimenopause and menopause are typically age-related, employers also need to be aware of age discrimination risks affecting this group. It may be direct age discrimination or harassment to target unfair treatment at employees because they are of menopausal age. Similarly, it may be indirect age discrimination to have a policy or practice which disadvantages people who are going through the menopause.

It is also possible to bring an age discrimination claim based on a perception, whether that is correct or not. For example, someone could claim that they were treated unfairly because of a perception that they belong to the age group most affected by the menopause (this is known as discrimination by imputation).

Disability discrimination

Whether or not menopause amounts to a disability will depend upon the individual’s particular circumstances. Some may only experience minor symptoms, while others can be more severely affected. The legal definition of a disability in Ireland is extremely broad, so disabilities that are temporary in nature may come within the protection of the legislation. Employers should treat all absences due to illness carefully and, if there is any doubt, treat them as a disability.

• Duty to make reasonable accommodation. The Employment Equality Acts oblige employers to make reasonable accommodation for people with disabilities. An employer must take “appropriate measures” to meet the needs of disabled people in the workforce. For example, the obligation to make reasonable accommodation could be triggered by an employee requiring menopause-related sickness absence, or by a review of an employee’s performance through a performance-management process. The employer’s usual policies on sickness absence or performance may need adjusting to take account of the effects of the menopause. The physical features of the workplace may also require some adjustment for those who are suffering with severe menopause symptoms, which we explore further below.

• Discrimination arising from disability. There are two types of disability discrimination that could arise – direct and indirect. Direct discrimination occurs where an employee is treated less favourably than another person (or would be treated less favourably in a comparable situation) on the basis of their disability. Indirect discrimination arises where particular practices or policies which appear neutral in fact result in a discriminatory impact on people with disabilities. The potential for discrimination is especially relevant for employees with menopausal symptoms severe enough to meet the definition of a disability under the legislation. The perimenopause and menopause may cause many symptoms which could affect performance or conduct in the workplace. An employer who dismisses or sanctions an employee for poor performance or conduct without exploring whether there is any underlying cause could easily fall foul of this provision.

What should employers be doing?

There are several actions that employers can take to ensure that they support staff affected by the menopause.

Training

Line managers should be trained to understand the impact that the menopause can have on work and what adjustments may be necessary to support those affected. Some managers may have their own experience of the menopause or of others going through it but should be aware that not everyone experiences the menopause in the same way.

Positive messaging and information

Employers should ensure that menopause is treated as a medical issue and highlighted as such as part of any wider occupational health awareness initiatives. Guidance for both employees and line managers on dealing with the menopause should be freely available in the workplace. Talking openly and respectfully about the menopause can give employees the confidence to speak up if they are struggling at work because of their symptoms.

Multiple channels for support

The options for seeking support for any issues that arise as a result of the menopause should be made clear to affected employees. Women may feel uncomfortable going to their line manager – especially, perhaps, if he is a man – and the topic may be difficult to raise for employees who are transgender, intersex or non-binary. Ideally, multiple channels of support should be available.

Having a menopause or well-being champion who can be a point of contact for both employees and their line managers can be helpful. Employee Assistance Programmes, if available, can also act as a go-between.

Clear sickness procedures

Sickness absence procedures should make it clear that they are sufficiently flexible to cater for menopause-related sickness absence.

Flexibility

Working arrangements should be flexible enough to ensure they meet the needs of menopausal employees, who may need to leave the workplace suddenly if they feel unwell. They may also need more breaks during the day - employers should, for example, avoid penalising staff who need to take more frequent toilet breaks.

Menopause policy

Some employers may want to consider adopting a specific standalone policy covering the menopause, directing employees to support channels or to HR if they feel some adjustments to their workplace or schedule could be helpful.

Health and safety

Risk assessments should consider the specific needs of menopausal workers and ensure the working environment will not make their symptoms worse. Issues that need consideration include temperature and ventilation. The assessments should also address welfare issues, such as toilet facilities and access to cold drinking water.

Improved welfare facilities could also include a quiet place to rest and easily adjustable temperature and humidity controls. Employers already have statutory duties to provide and maintain facilities and arrangements for the welfare of his or her employees at work under the Safety, Health and Welfare at Work Act 2005.

Employers should bear in mind that all workplaces are different. For example, in some workplaces it is not possible to open windows to improve ventilation. Employees who wear a uniform will be less able to change the type of clothing they are wearing when they are having hot flushes or sweating. Examples of how managers have adapted to the needs of staff with menopausal symptoms include:

• taking the menopause into account in absence policy

• providing electric fans

• providing cold drinking water

• allowing time off to attend medical appointments during working hours.

In conclusion, there is much that employers could do to proactively support and value employees who are going through this natural process. Awareness of the symptoms of menopause and their impact on the workplace is increasing. Employers risk legal claims as well as employee discontent if they fail to manage menopause in the workplace with appropriate care and sensitivity.

What Lewis Silkin is doing and how we can help

As part of Lewis Silkin’s wellbeing programme, we recently held a Menopause Awareness Week. This involved sharing a range of materials, data and insights as well as providing training and information sessions to help everyone understand a little more about the menopause and how it impacts so many people, both directly and indirectly.

If you would like more information on how to raise awareness of menopause in the workplace and support employees going through the menopause, please feel free to contact Linda Hynes, Síobhra Rush or any member of the Lewis Silkin Ireland Employment team.