Menopause In the Workplace: Understanding EHRC Guidance for UK Employers

The NHS outlines the common symptoms of menopause and perimenopause as:

• Menstrual cycle changes, making them irregular and periods eventually ceasing altogether
• Changes to mood, like low mood, anxiety, mood swings and low self-esteem
• Problems with memory or concentration (brain fog)
• Hot flushes, having sudden feelings of hot or cold in the face, neck and chest which can cause dizziness
• Difficulty sleeping, which may be a result of night sweats causing tiredness and irritability during the day
• Palpitations, when heartbeats suddenly become more noticeable
• Headaches and migraines that are worse than usual
• Muscle aches and joint pains
• Changed body shape and weight gain
• Skin changes including dry and itchy skin
• Reduced sex drive
• Vaginal dryness and pain, itching or discomfort during sex
• Recurrent urinary tract infections (UTIs)
• Sensitive teeth, painful gums, or other mouth problems

These symptoms can last for months or years and change with time.

(source: https://www.nhs.uk/conditions/menopause/symptoms/)

Employers have legal obligations under both employment and Health and Safety legislation. The Equality Act defines a disability as, ‘A physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on the ability to do normal daily activities.’

How do Menopause and Perimenopause Fit into the Definition of Disability?

1. ‘Physical or mental impairment’: we can see that women are affected by menopause symptoms both physically and mentally.
2. Substantial means that the condition not only affects the ability to attend work but may also affect an employee’s ability to do daily activities. Many menopausal women in the workplace report that symptoms can have a significant impact on their ability to carry out their duties at work and in their daily lives in general.
3. Long-term usually means that a condition has lasted, or is expected to last, for 12 months or more (including conditions which progressively worsen over time). This isn’t an absolute time scale but when you consider that the perimenopause stage can last many years, symptoms are also likely to affect women for a substantial period.

PLEASE NOTE!

• As with most medical conditions, the severity and impact of the symptoms will vary and not every woman experiencing symptoms of menopause while working will be impacted in the same way.
• Employers do not have to assume that every woman going through menopause and perimenopause is automatically classed as having a disability. Still, employers should avoid making assumptions or comparing the impact of menopause and perimenopause symptoms to themselves, someone they know or other employees who appeared to be impacted by menopause to a lesser degree.

Where a woman’s symptoms may fall under the definition of disability, there is a legal duty under the Equality Act to implement reasonable adjustments and offer menopause support in the workplace.

There’s no definition of what is reasonable adjustments for menopause are, this will depend on the type of role, the type of industry, the size of the company, the financials and of course the needs of the individual but when an employer fails to make reasonable adjustments, they could be discriminating against that employee.

Managing menopause in the workplace through reasonable adjustments also forms an important part of adhering to health and safety obligations, where employers have a legal duty to conduct assessments of their workplace risks.

The EHRC guidelines set out the following ways employers can provide perimenopause and menopause support in the workplace:

1. Room Temperature and Ventilation: For women experiencing hot flushes, employers could provide rest areas and allow additional breaks. They could manage workplace temperatures with cooling systems or electric fans and have a more relaxed approach to uniforms or dress codes.
2. Flexibility: Being flexible at work can greatly assist women experiencing menopause symptoms. For example, home working and changes to shift patterns such as a varied start time which will take into consideration the impact menopause symptoms can have on sleep patterns – particularly in warmer weather.
3. Policies: Employers should keep their policies under review to ensure that they do not indirectly discriminate or disadvantage employees experiencing menopause symptoms. For example, uniform policies or rules around rota/overtime arrangements.
4. Disciplinary Action: Employers can manage persistent absence and poor timekeeping via their disciplinary procedure. However, such action should be avoided if any absences are menopause related to avoid the risk of discrimination claims.
5. Harassment: Harassment related to any protected characteristics such as disability, age, sex, race and so on, is unlawful. Menopause can often be the butt of inappropriate ‘banter’ or be treated with general disdain. For example, how many times have we heard expressions like ‘she must be having a senior moment’? which often pokes fun at the sudden onset of hot sweats or the menopause brain fog that can cause memory problems. Employers need to lead by example and ensure that a zero-tolerance approach to harassment means zero tolerance by acting on any complaints promptly and by promoting an inclusive culture through training.
6. Communication: Employers shouldn’t dismiss menopause as ‘women’s problems’ and shy away from conversations. If you offer services such as employment assistance programmes, ensure all staff are reminded of how to access these regularly. Encourage open lines of conversation by ensuring that managers have regular 1-2-1s with staff where they can raise any concerns they may have. This is especially important for remote workers, who are more likely to be isolated from the workplace. At present there isn’t a legal requirement to have menopause policies at work, but this is likely to change under the recently elected Labour Party’s New Deal for Working People. Though not a legal requirement, a menopause policy can be a useful tool to direct women to specific guidance available to them. Menopause policies also support managers when having conversations with their staff and to know how and when to implement any necessary adjustments.

Here are two recent cases heard at the employment tribunals which illustrate the impact of menopause on work and the potential costs of failing to adhere to your legal obligations:

1. Shearer v South Lanarkshire Council

Mrs Shearer was awarded £61K after her employer failed to make adjustments for menopause and anxiety symptoms.

Mrs Shearer was informed she would be required to move to another school where her skills as an English teacher were needed. Mrs Shearer expressed concerns about the change of work location owing to the impact this would have on her high blood pressure, anxiety, low mood and menopausal symptoms because she feared the school in question had high levels of violence against teaching staff.

However, she was informed she would have to move and following a long period of sickness absence, she was dismissed on the grounds of medical capability.

The failure to make reasonable adjustments for menopause, including allowing other members of staff to move to the school in question, resulted in her claims for unfair dismissal and disability discrimination being upheld.

2. Lynskey v Direct Line

Ms Lynskey worked for Direct Line and was awarded £65K after her employer failed to make reasonable adjustments after she experienced difficulties carrying out her role due to her health. Her symptoms included low mood and memory problems which she attributed to the menopause, but her employer considered these issues were instead due to confidence.

The company was criticised for failing to accept her health as mitigation for the performance concerns and cited as many as eight possible reasonable adjustments that could have assisted Ms Lynskey in her original role.

The EHRC guidance in supporting menopause in the workplace is important because it outlines in plain speak the legal recognition that menopause symptoms have not only concerning sex and age but also disability.

The guidance also explains the difference between perimenopause and the menopause, and it sets out how menopausal women in the workplace can be affected. It also covers the bit many employers dread i.e., how to have conversations about menopause. This is very important because as we have seen with the drive to improve attitudes towards mental health, an improved attitude and awareness regarding menopause and work also starts with education and you can’t educate without effective communication.

Employers should familiarise themselves with this guidance and take action now to not only avoid costly claims but as a crucial first step to a greater understanding of menopause symptoms which will enable them to continue to attract and retain valued members of staff.

For further reading and EHRC Menopause Guidance, visit EHRC Menopause Guidance.

Do you have an employment law issue or question related to menopause at work? For more information and to discuss your specific needs, simply click here: Avensure Contact!