Guiding you through the menopause

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Available guidance

It was noted that there was a recent wealth of information and guidance available for employers on menopause policies and adjustments that could be carried out. However, most of the guidance was quite generic and often not practical in the approach to be taken in assessing if an individual was going through the menopause or how discussions, which could be extremely sensitive, should take place. 

Often humour can help embarrassment and perhaps encourage the individual to open up about the symptoms that they are suffering from, but equally, belittling something which can make someone seriously unwell can only serve to denigrate any good efforts by the employer in bringing the condition to the fore and supporting the individual. 

Reference was made to a number of policies and guidance which contained stereotypical pictures such as a woman with a fan on her desk and jokey style references. Businesses need to be careful to avoid humiliation. 

Whilst a lot of the guidance is very helpful, the symptoms of menopause are a health issue and should be approached as such, in a supportive and sensitive manner.

General workplace support and adaptions

The menopause does not necessarily have a sustained impact and will not always result in a legal obligation to make workplace adjustments, but best practice employers should consider whether there are any general workplace adaptions that they can make to support individuals going through this period in their lives. So what adaptions can an employer proactively offer as a way to soften the impact of the menopause?

There were examples of how a general policy on agile working assisted people going through the menopause tremendously. Many individuals suffering from menopausal symptoms fear that a revelation that they are perhaps not on top of their game or are feeling tired or forgetful will jeopardise their career. This is a realistic concern and one which may be self-imposed by the individual no matter how open the employer is to encouraging people to come forward and seek support. 

A general policy of agile working that applies to all staff members could therefore assist greatly if, for instance, a person has had a sleepless night and is able to catch up on some sleep and attend work slightly later or work from home to help to make up for time that they missed.

However, agile working is not possible for all organisations, such as those businesses with a requirement for set hours to be worked, for example, retailers or factories. So how does an employer ensure that such workers are also catered for? 

In addition to adaptations to the workplace (such as appropriate air conditioning) or indeed uniforms if workers are required to wear them (a 100 per cent polyester uniform is unlikely to assist with a hot flush), individuals may feel that during this period they would like to temporarily have a career change. This could mean remaining in the organisation, but changing role for a temporary period, thereby allowing the business to retain the individual’s talent and getting more out of them. Some individuals may feel like a career break would benefit them. Again, this could potentially benefit all genders’ health. 

These options could be seen as a positive, proactive support mechanism which workers could elect to use if they wish. If an employee was keen to use such a policy this could avoid employers being forced to address absence or performance issues through a formal process.

A formal process is likely to involve analysing the situation on the basis of ill health, what the individual cannot do and considering adjustments an employer is legally obliged  to make.

To avoid discrimination claims, the policies would ideally be available to all workers and would likely be valid business tools to attract and retain the best staff, including individuals of a certain age and experience looking to redirect their careers to an agile and flexible business.

Legal protection

The menopause or the perimenopause for women, trans men and some non-binary people is a natural evolution of their physical state. There are additional obligations at the earlier stage of their life such as protection against redundancy during pregnancy. Should there be any additional protection afforded to those individuals during the menopause stage? 

An interesting comment was raised that individuals going through menstruation, suffering from severe period pains, may also experience symptoms which affect their performance in the workplace and there is no specific protection for them either. Some participants did feel that more should be done to protect people going through the menopause and indeed at the early stages of a person’s career. However, on the whole, participants felt that there was probably enough legal protection available for workers going through the menopause. 

The Equality Act 2010 offers protection to workers who are disabled. The symptoms of the menopause may well amount to a disability, depending on the nature, severity, impact and longevity of the symptoms. The menopause could aggravate existing health conditions which may amount to a disability too. 

As well as disability, the Equality Act 2010 also encapsulates a number of other protected characteristics which may offer people going through the menopause protection, including sex and age. If an individual is treated unfavourably because of the menopause, that will likely amount to sex discrimination. It may also amount to age discrimination given the menopause only affects people at a certain stage of their life. If a person is required to wear a uniform that disadvantages people going through the menopause, that may amount to indirect sex discrimination. 

Where a person’s symptoms do amount to a disability under the Equality Act 2010, the law also imposes an obligation on employers to implement reasonable adjustments where premises, working arrangements or the lack of auxiliary aids put a disabled person at a substantial disadvantage compared to others. These provisions of the Equality Act 2010 can offer protection to workers who have suffered unfavourable treatment arising from their menopause symptoms. Employees  may also have unfair dismissal claims if they are dismissed due to their menopause symptoms. 

Workers are also protected from harassment relating to a protected characteristic (when someone engages in unwanted conduct which has the purpose or effect of either violating the other person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the other person). We have witnessed the head of the Bank of England referring to the economy as “menopausal” - the inference being it was slow, sluggish and old. 

The legal obligation to carry out a risk assessment under the Health & Safety at Work Act 1974 also extends to menopausal individuals. If an employee is pregnant then an organisation will usually set out immediately to do a risk assessment. Such assessments are common place and health and safety officers understand the tangible issue that requires to be assessed. However, few, if any, organisations would look at the work environment of menopausal individuals. 

A risk assessment might include, for example, a review of air conditioning, being close to a window, being close to water coolers and having access to toilets. There is also the issue of symptoms like acute headaches and migraines which may be impacted by noise or glare from screens. Risk assessments for menopausal individuals are something that could provide them with great benefit and assist an employer to defend a failure to make a reasonable adjustment claim.

In addition to the general duties under the Equality Act 2010, there are also additional obligations in the public sector under the Public Sector Equality Duty which can help to promote and protect menopausal people.

We are only starting to see claims in the Employment Tribunal relating to the menopause. As awareness of the menopause and its impact in the workplace grows, it is likely that more claims will be brought.

Managing people struggling at work due to the menopause

It was recognised that the menopause may impact an individual’s performance and/or attendance at work, and even with the best will to encourage those individuals to seek support and use policies to their advantage, there may still be a need for businesses to manage such issues.

If a person is struggling with their performance or attendance, this should be approached as a normal performance or attendance issue including consulting with the individual and potentially an occupational health referral to understand why the individual is struggling, and how best to support them. Informal early consultation with the worker may be sufficient to improve matters and avoid the need for a formal process.

Another challenge discussed was where the worker’s symptoms were impacting their performance or attendance at work, but they were not taking any of the recommended steps in relation to self-care or refusing to take the HRT therapy which could assist. Some individuals choose medication, others may choose to go down a more natural or homeopathic approach with evidence of certain herbs etc. assisting or diminishing the impact of the menopause. 

There may be genuine health concerns as to why a person would not want to use an HRT supplement because of family history or side effects. There is also evidence to suggest that self care would help menopause symptoms so for instance not drinking alcohol, eating natural products, staying away from processed foods and regular exercise. 

However, would an employer be able to dismiss fairly for capability if the worker is not doing anything to help themselves or not taking the most direct approach to help themselves? At what stage would it be feasible for an employer to take this approach? 

It would certainly be a very case sensitive and perilous decision due to the discrimination risks unless the worker was clearly rejecting medical, homeopathic and/or self-care which could assist their symptoms for no good reason or had shown no improvement over a prolonged period of time and their symptoms were adversely affecting the business.

Ill-health and capability are matters which businesses handle all the time and on the whole, will be experienced in managing. However, the menopause, as noted above, could bring with it some extra sensitivities which businesses will need to navigate carefully on a case by case basis.

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