Put simply, the menopause is an issue which can no longer be ignored by any employer. We will unpick why that is the case as we examine not just the legal and human resources (HR) issues at play but also wider shifting societal attitudes to all matters menopause.
The menopause – the last taboo?
There are estimated to be 13 million perimenopausal or menopausal women in the workforce. With women working for longer, this is the fastest growing demographic group in the workplace. Traditionally, menopause has been seen as a ‘women’s issue’, little acknowledged let alone discussed. And yet the menopause can have a significant impact on women (and men) in the workplace and if poorly handled can lead to negative outcomes both for employers and employees.
Evidence from the health sector shows that many women leave their jobs because of menopausal symptoms. Not only are employers losing talent and incurring the costs of recruitment and upskilling new staff, this loss is likely to increase the gender pay gap and also reduce the representation of women at work.
And yet the menopause is part of the natural biological ageing process
for women, and usually starts between the ages of 45 and 55. It can also be triggered medically, by treatments such as chemotherapy or surgically-induced processes such as a hysterectomy.
The perimenopause is the period of hormonal change leading up to the menopause. Symptoms can last from one to 10 years, but each woman will have a different experience. It is also vital that employers do not ignore the needs of transgender, non-binary and intersex employees with a reproductive system affected by the menopause.
The cultural short-hand for menopausal symptoms – the hot flush – is only one of 34 recognised symptoms due to chemical changes, affecting mental health (anxiety, depression, insomnia, panic attacks, inability to focus and retain information, and ‘brain fog’), and physical health (increased sweating during the day, hot flushes, palpitations, declining gut health, heavy bleeding and dry eyes).
When considering its impact on the workforce we shouldn’t forget that this extends into the personal lives of those affected. The menopause can and does impact on their partners and families who may also be your employees, so this is an issue for all.
There is a rising societal shift with a growing number of women determined to break the taboo around menopause and fight for better treatment in the workplace and for better health provision. The conversation is opening up with those affected refusing to be treated badly at work and marginalised.
So what should employers be focusing on to address these issues?
From a health and safety perspective addressing the issues that the effects
of the menopause can create in the workplace is a health priority.
Risk assessments should be prepared with a focus on a range of factors, including workplace temperature and ventilation, display screen equipment assessments, access to natural light (given the benefits that natural light has on mood), the ease of toilet access and the availability of cold water and quiet spaces. Also consider hybrid working arrangements with flexibility in working hours and location when seeking to support your employees.
In addition, ensure that the breadth of menopausal symptoms is taken into account. For instance, consider the risks from sleep deprivation. This could impact not only employees directly suffering from menopausal symptoms but also those whose sleep is disrupted due to their partner’s insomnia, for example. And what about the effects on concentration in safety-critical work environments?
HR functions should be focusing on recruitment and retention and identifying working practices that will support women (and men) in the workplace. They can also ensure that managers are adequately trained and able to provide informed support to employees when/if requested.
HR is also well placed to work with and support internal workplace networks who in turn can engage with the workforce. This will help to normalise the discussion.
Addressing the menopause in the workplace is clearly a health and wellbeing priority with the result that employee wellbeing and engagement should be foremost when managing menopause-focused strategies.
What is clear is that a multi-disciplinary, collaborative approach is more likely to ensure that relevant knowledge and expertise within your organisation can be captured. This requires a dialogue between health and safety managers, HR, facilities, occupational health, line managers and senior management as well as the workforce as a whole in order to create a culture of acceptance, openness and understanding about a condition which will affect a growing number of employees.
It is important as with any health condition to make sure that information about employees and the menopause is processed confidentially and in line with your data protection obligations. Your approach should also ensure respect for those employees who prefer, despite the support available, to deal with their menopause privately without discussing it in the workplace.
Menopause-related legal claims
As with so many workplace issues there is the spectre of litigation.
Women report being harassed (by others engaging in ‘banter’ about their sweats, an increased need to go to the bathroom or ‘brain fog’), not getting the simple workplace adjustments they need, having to take sick leave and – in the worst cases – having to leave work altogether.
For far too long even the term menopausal has been used by some as an insult or as a criticism of an employee whose performance may have for understandable reasons dipped. If related to a ‘protected characteristic’ under the Equality Act 2010, such as age or disability, these experiences could likely result in claims for discrimination.
While the menopause is not a protected characteristic in its own right, we are seeing a growth in the number of menopause-related claims where women seek to attribute menopause to age, gender and/or disability in order to secure protection under the Act. And, in some cases, those claims are succeeding.
So far, the most successful route has been challenge on the basis of disability discrimination. While the menopause does not of itself amount to a disability, the physiological or physical consequences of going through it can.
The tribunals are starting to find that menopause is a disability for the purposes of the Equality Act 2010.
These cases, which are on the rise, have turned on the effect menopause has on the individual claimant and where it is found that the menopause has had more than minor impact on the claimant’s ability to carry out day-to-day activities and has lasted (or is likely to last more than a year), the tribunal has concluded that the symptoms of the menopause amounted to a disability.
At present, there is no specific protection for the menopause under the Equality Act 2010. Often, menopausal women do not feel that they have adequate legal protection due to the lack of clarity in the legislation. The House of Commons’ Women and Equalities Committee has recently launched a Call for Evidence on the Menopause in the Workplace and will be reviewing the legal framework.
Depending on its conclusions, the committee may recommend the government makes legal changes to better protect women from discrimination in the workplace associated with the menopause and to ensure women are not negatively affected at work as a result of the menopause. So we may see changes to the law in due course.
Should there be a change to the legislation, a route to greater protection could be provided to accommodate the intersectional nature of the menopause – that it impacts on women mostly within a similar age group and therefore lends itself to the concept of dual discrimination that is provided for in the Equality Act but not brought into force yet.
In addition to discrimination claims, employers should also be aware that women could resign in response to the way they have been treated and claim constructive unfair dismissal. This is particularly the case where the employer has not satisfied the obligation to ensure that appropriate health and safety measures are in place to provide a safe working environment.
Litigation can be costly, time-consuming and, when related to a topic such as the menopause with its very public profile at present, attract embarrassing press coverage for employers.
The good news is that supporting women and other workers affected by the menopause at work is like any other health and safety or employee relations risk. Education, enabling conversations and some basic workplace adjustments can make all the difference.
To address these issues consider drawing up an inclusive best practice action plan including initiatives to:
- Recognise and include the menopause as a health and safety, employment rights and diversity and inclusion matter
- Educate through policies, guidance, awareness raising and training
- Establish networks and environments to create ‘safe spaces’ for people to share experiences and to get the best support
- Offer professional counselling, health and wellbeing support
- Make workplace adjustments to the physical workspace and how your people are expected to work, including ensuring flexibility in the way absence, flexible working and performance issues are managed.
By Rhian Greaves, DAC Beachcroft on 05 May 2022
The way a business responds to a health and safety accident and any resulting regulatory investigation is crucial both for its reputation and the eventual legal outcome.
By Grace Robinson, 4 Day Week Campaign on 19 April 2022
Thirty businesses have recently announced their participation in the UK’s biggest ever four-day week pilot, trialling a 32-hour, four-day working week with no loss in pay from June this year.
By Mike Robinson, chief executive, British Safety Council on 29 April 2022
Do we value regulations enough, or are we better off without them? Most of the time, many of us never pause to think about the rules that govern us, so embedded are they in our daily life.