Menopause and the Workplace

Page published on 3rd December 2024
Page last modified on 9th December 2024

 

On 18 October 2024 – World Menopause Day – IPause, Women in IP and IP Ability came together to  host a webinar focused on the intersection of these three communities in relation to employment law and human resources.

The event was chaired by Jane Wainwright, the IPause committee lead, and Yelena Morozova from the Women in IP committee. Our guest speakers were:

• Natalie Ward, Employment Law Partner at Thrings LLP, and
• Debbie Cooke, Head of Business Change, Menopause Mentor and Champion at the IPO.

A recording of the webinar can be accessed here; read on for our summary.

Disclaimer: Please note that the information contained within this article does not constitute legal advice. For any further queries around this topic, please contact Natalie Ward at Thrings Solicitors ([email protected]) or consult another qualified lawyer.

 

The Equality Act

Menopause-related symptoms, even when controlled with medication and lifestyle, can last for many years and have a substantial impact on ability to work for some of those experiencing (peri)menopause. Natalie explained how those experiencing symptoms may be protected against discrimination under UK law.

The Equality Act lists nine protected characteristics, and you need to rely on one of these to take action. Whilst menopause itself is not a protected characteristic, it may be possible to rely on age, sex, disability and potentially gender reassignment as protected characteristics.

Natalie explained these options and gave us insights by delving into recent case law.

 

Age

It may be possible to bring a case of less favourable treatment or disadvantage on the basis of age. An example of this was the case where Ms McCabe in Mc Cabe v Selazar Ltd ET/2200501/2021 successfully argued that she was disadvantaged by age when dismissed age 55, her boss having made various comments about her hormones and menopause.

Employers should take care not to discriminate against anyone because of their age, whilst being aware that cases can also be brought by others in younger or older age groups if they feel they’ve been disadvantaged by a particular policy or action.

 

Sex

Natalie spoke of two cases (Newbould v Commissioner of Police of the Metropolis ET/2205178/2018 and Sokolova v Humdinger Ltd ET 2021) where sex discrimination claims were brought, both unsuccessfully, in the context of menopause-related symptoms. In the Newbold case, a claim of sex-related harassment failed. In the Socolover case, the tribunal found no indirect discrimination on the basis of sex.

 

Disability

To demonstrate discrimination on the basis of the protected characteristic of disability, you first have to show that your menopause symptoms qualify as a disability under the Equality Act, that is ‘a physical or mental impairment’ which has ‘a substantial and long-term adverse effect on [someone’s] ability to carry out normal day-to-day activities’.

This will not apply to everyone experiencing menopause-related symptoms but will depend on severity and length of symptoms, as well as the specific impact on the individual.

Various cases have tested whether menopause-related symptoms qualify as a disability.

 

Some cases where the tribunal found that someone suffering such symptoms did qualify as disabled are:

• Chan v Stanstead Airport Ltd Et/3205543/2022 – Symptoms: stress and anxiety over a period of 4 years, causing Ms Chan to be signed off for weeks at a time; also memory loss, lack of concentration, fatigue. Tribunal found that these symptoms did have a substantial adverse effect on her ability to carry out day to day activities. The tribunal also considered that symptoms may not be consistent.
• Rooney v Leicester City Council EA 2020 – Symptoms: A whole range of symptoms that caused Ms Rooney to forget to attend events, lose things, forget to lock door, etc. She was also acting as a carer for relatives. On appeal the tribunal found that her symptoms did have a substantial adverse effect on her ability to carry out day to day activities.
• Charles v London Underground Ltd ET/32003332/2021 – Symptoms: Worsening of menorrhagia symptoms with menopause caused extremely heavy bleeding, etc, which impacted the employee’s ability to leave the house. Tribunal found that this did qualify as disability.
• McMahon v Rothwell and Evans LLP ET/2410998/2019 – Symptoms: a range of menopause-related symptoms occurring frequently, even though they were not consistent. The combination of symptoms had an adverse effect, even if individually they might not have done.

 

Some cases where the tribunal found the symptoms did not qualify as disabled are:

• Kelly v DWP ET/2500881/2021 – no medical evidence of impact of symptoms.
• Rose v Commissioner of Police of the Metropolis ET/3203055/2019 – no evidence of the adverse effect of symptoms or the impact of them on the ability to work.

 

Indirect discrimination claim

An indirect discrimination claim can be brought when an employer has a policy that puts a group of people with a protected characteristic at a substantial disadvantage, and also the claimant at that disadvantage.

Recent case law indicates that a person can bring an indirect discrimination claim even if they themselves don’t have that protected characteristic, as long as they are still impacted by the policy. For example, if your menopause-related symptoms don’t qualify as a disability, but you still suffer the same disadvantage as, say, a group of disabled people as a result of your employer’s policy, then you can still bring an indirect discrimination claim.

As a result, employers should be cautious when thinking about their policies and how they impact different groups of people.

 

Reasonable adjustments

Employers have a duty to make reasonable adjustments when a disabled person is placed at a substantial disadvantage by one of their policies, requirements or something physically on their premises. This is specific to the protected characteristic of disability.

Employers should consider if they can put anything in place to minimise that substantial disadvantage. Specifically, when thinking in relation to the menopause, consider what can be put in place to reduce the impact of menopause-related symptoms on staff performance.

 

IPO Menopause Policy

In the next part of the webinar, Debbie talked about the types of workplace adjustments that employers can introduce to better support those experiencing menopause-related symptoms.

The IPO have had a Menopause Policy for several years. As part of this, menopause training is available, but not compulsory, for all managers to educate them about symptoms and the impact of the menopause, as well as how to have conversations and provide reasonable adjustments.

The IPO has also introduced a ‘menopause’ category for sickness absence, which means that this is taken into account when considering sickness absence, particularly when previous sickness records show that absence was not an issue pre-menopause. This started to normalise menopause as a genuine reason to be off work and encouraged more open conversations with managers.

 

Examples of reasonable adjustments

The IPO has a general policy of making adjustments available for a wide range of reasons, via a ‘workplace adjustment passport’. This is usually agreed by informal conversation with your manager, although HR advisers are available to support the process if necessary.

Examples of adjustments include:

• Flexible working adjustments, such as changes to working patterns, days in office, flexi-days off, and leave at short notice.
• Workplace environment adjustments, such as working in a cooler area of the office or close to a window, the provision of fans.
• Adjustments to the types of tasks or workloads, such as temporary changes to the work allocated or adjustments to daily targets.

It is also possible to request support from occupational health and the Employee Assistance Program (EAP).

 

Menopause Champions

The IPO also has a group of Menopause Champions, who provide information, support and guidance on an informal basis. They also hold monthly menopause drop-in cafes.

 

Future Events and Resources

Keep an eye out for other IP Inclusive events on our website Events page. In particular, you’ll find menopause-related events on the IPause webpage.

You may also be interested in our YouTube playlists which feature recordings of our webinars:

• Women in IP playlist on YouTube, which features recordings of all our Women in IP webinars,
• IP Ability playlist on YouTube, which features recordings of all our webinars on neurodiversity, disability and chronic conditions,
• IPause playlist on YouTube, which features recording of all our menopause-related webinars,
• Our series of Menopause Stories on YouTube.

Check out our Menopause Resources, our IP Ability Resources and our Women in IP “Quick Wins” toolkit.