Scrolling through Instagram, a menopause message popped up giving me permission to relax over Christmas and not even attempt to diet – I didn’t need to be told twice! And let’s just say my Covid slouchy pants have been resurrected! However, a new year inevitably means a tightening of our belts in more ways than one!

2023 brings a particular challenge for organisations seeking to reduce costs amidst a war for talent. Employers who elect to cut costs on diversity and inclusion (D&I) initiatives will not only lose talent but may be exposing themselves to financial risk which could be avoided. The recent employment tribunal decision of McCabe v Selazar Limited highlights why menopause awareness should be top of your D&I agenda this year.

Ms McCabe was a founding director of the respondent business and was employed part-time as the finance director. During an executive meeting, a colleague raised issues with one of Ms McCabe’s team and criticised her department’s performance, to which Ms McCabe replied that she only had one pair of hands. The CEO, who was also a founding director, stated: "Calm down…don't let the hormones get out of control".

The relationship between the claimant and the respondent subsequently deteriorated due to various matters, including the respondent removing the claimant as a director without her knowledge. Ultimately, the claimant was dismissed. She raised several employment tribunal claims, including one alleging age discrimination.

The tribunal held that statement regarding Ms McCabe’s hormones was evidence that the CEO viewed Ms McCabe as a menopausal woman – that is, an older woman. Considering all the evidence (including that the respondent asked for a younger person to replace Ms McCabe, and that the CEO considered that older people were not familiar with IT businesses) the tribunal held that at least part of the reason for Ms McCabe’s dismissal was her age. The burden of proof shifted to the respondent to show that age was not part of the reason that the claimant was dismissed, which the respondent did not do. Ms McCabe’s complaint of age discrimination was therefore upheld and she was awarded £125,604.

It is disheartening to continue to see a lack of understanding of the menopause and the comments made in this case. It illustrates that there remains a real need to educate your workforce on the menopause and associated unlawful treatment. Not only can this kind of behaviour lead to costly tribunal action and expertise being lost, but is reputationally damaging too – particularly considering stakeholder expectations regarding D&I (a key indicator of ESG performance). If your organisation does not have a framework in place to raise the necessary awareness of the menopause and the law in your workforce, now is the time to act.

How we can help

As Scotland’s first accredited “menopause friendly” employer we are perfectly placed to assist employers with their menopause initiatives.

Burness Paull can supply your business with a toolkit which includes a consultation, menopause policy and a list of key actions an employer should take to support those impacted by the menopause in the workplace.

We can also provide training for HR, in-house legal and managers on menopause at work, including discussion of the legal framework and case studies. Further information regarding Burness Paull’s initiatives can be found in our ‘Mindful of Menopause’ videos.

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