When can menopause form the basis for an Employment Tribunal claim?

With World Menopause Day approaching on 18 October 2021 and growing media interest in the topic, it is perhaps unsurprising that Employment Tribunal (ET) claims are increasingly citing issues concerning menopause. According to data from the Menopause Experts Group, as recently reported by People Management, there were 16 ET cases citing the claimant’s menopause last year, up from six in 2019 and five in 2018. The first six months of 2021 had already seen ten cases referencing menopause, which the study projected could total 20 by the end of the year.

While these remain relatively small numbers, the trend appears to highlight an underlying reality that those living through perimenopause and post-menopause symptoms often need to significantly adjust how they behave on a day-to-day basis. Many do so discreetly, with a degree of embarrassment, combined with anxiety over the impact of the symptoms on both their work and personal lives. The number of actual ET claims is likely to be the tip of the iceberg in terms of employees who encounter difficulties at work because of the menopause.

What specific legal rights may apply in this context? One contender is disability discrimination. The definition of disability in the Equality Act 2010 applies where someone has 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. 

Some of the debilitating symptoms of menopause include insomnia, joint problems, random hot flushes, brain fog, anxiety, exhaustion, unpredictable heavy bleeding, lack of confidence and fatigue. As such symptoms are often expected to last more than a year (and possibly several), this phase in a person’s life may well meet the statutory definition of disability.

Sex and age discrimination are also obvious potential risks for affected employees. There may be direct discrimination or harassment if women, and older women in particular, are singled out for unfavourable treatment or subjected to jokes because of the menopause. Non-binary employees and trans men may also be discriminated against if they go through the menopause. Apart from equality law, employees have the option of resigning and claiming constructive dismissal if they suffer intolerable treatment that amounts to a serious breach of their employment contract. 

Many women seek medical advice and support, either before or in tandem with considering their workplace rights. Approaching a GP can, however, be something of a lottery: reports of inadequate knowledge, time and understanding are commonplace. The organisation Menopause Support has reported that 41% of UK university medical schools do not have mandatory menopause education on their curriculum. Meanwhile, NHS menopause clinics often have lengthy waiting times and private clinics, many of which have excellent reputations, are expensive.  

Against this backdrop, employers have an opportunity to create a more supportive culture to enable employees impacted directly or indirectly by the menopause to work effectively. This should not only reduce the risk of ET claims, but more importantly foster a more understanding and productive workplace. In turn, that can help your organisation to retain talented individuals, many of whom will be in senior or well-established roles.  

Introducing a menopause policy provides a good foundation but employers need to do more to build upon that by, for example:

• Organising training for line managers on how to listen and sensitively support individuals going through the menopause.
  
  
• Providing a readily available information resource pack.
  
  
• Hosting “safe space” conversations for anyone affected.
  
  
• Considering what reasonable adjustments can be made, such as: better ventilation or temperature control; easy access to toilets and cold water; adjusting uniform requirements; and being open to flexible working arrangements where needed.
  
  
• Making discussions about potential reasonable adjustments an expected next step, rather than something that employees have to fight to diarise.
  
  
• Extending medical insurance (where provided) to cover access to clinical support.  

We will be hosting an online webinar on Menopause and wellbeing on 19 October 2021 – please join us to discuss ways for employers to offer practical and effective menopause support to their workforce.