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Menopause Discrimination - what it could mean for employers
- AuthorSusan Mayall
The menopause could be the next big area of Employment Law which business owners need to be aware of and could give rise to tribunal claims and workplace problems following more cases.
With over 4.3million women between the ages of 45-60 in employment in the UK (ONS Jan 2019), it is something that will concern most employers - with time and money invested in employees the last things businesses need is disgruntled staff or staff leaving the workplace and considering a tribunal claim.
Many women cope well through the menopause, but others struggle through on limited sleep, hot flushes in meetings, reduced confidence and an embarrassment at their symptoms, whilst at the same time they want to maintain their jobs and work to the best of their ability.
As head of Employment at Pearson, Susan Mayall said: “Could the manifestations of the menopause be the next area to be referred to as sex discrimination?’
“I can see it not being long before a case is pleaded by a menopausal employee citing an employer’s ‘provision, criterion or practise’ as being indirectly discriminatory so it is vital that employers sit up and take notice. The health, safety and welfare responsibilities of all employees should be paramount and businesses need to make arrangements for employees who may be experiencing difficulties and help them with a coping strategy whenever possible,” she added.
In the case of Merchant v BT, the first successful case of its type, the staff member alleged she was discriminated against on the grounds of her gender during her menopause. The employment tribunal upheld her sex discrimination case.
More recently, a £19,000 pay out was made to a female employee of the Scottish Court and Tribunal Service after an employment tribunal ruled her menopause was a disability and she had been unfairly dismissed. She claimed she had been discriminated against because of a painful and disruptive menopause.
According to the British Menopause Society (BMS) eight out of 10 women in the UK experience symptoms with 45% finding their symptoms difficult to deal with and of course this can then affect them in the workplace.
It may be difficult for many women to discuss the menopause with their line manager or other HR person, but whenever possible businesses should have policies in place to deal with this such as flexible working, sickness absence procedures allowing women time off for health appointments or more breaks to help them during the menopausal transition.
The BMS states that: “Guidance frequently acknowledges the legal issues around the menopause and the duty of care that employers have to ensure the health, safety and wellbeing of their staff should be accommodated (e.g. Health and Safety at Work etc Act 1974, Management of Health and Safety at Work Regulations 1992, 1999), which should include the menopause as well. The Equality Act 2010 is also considered relevant around the protected characteristics of age, gender and disability as women of this age and should not be discriminated against due to their menopause, which can have significant effects on a women for more than 12 months.”
Employment law and cases
The first cases in relation to menopause have been won, including the first on disability. Others are on the radar and could be age, gender or even disability discrimination related.
“This is at such a delicate stage in the employment law process that I would expect each case to be taken on its own individual merits,” said Susan.
“If a business fails to make reasonable adjustments it could lead to a discrimination claim as it is a breach of the law, but it can be a minefield, it’s unchartered employment law to some extent and so I would urge my clients to pick up the phone and check with me if they have any concerns, discrimination on the basis of a protective characteristic is not only unlawful but opens up a liability for potentially unlimited damages.
“Acting as a responsible, reasonable employer and operating under the best practice guidelines really is the best way to support your employees and protect yourself from a tribunal.”
For advice on employment law and the menopause
Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers LLP or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.