I recently presented at a Legal IT Conference and had the pleasure of having dinner with the group in the evening – no surprise that out of the 50 CIOs attending 43 were men! During dinner one of the delegates asked me if I could shed any light on why they seemed to lose women employees in their 50’s and what they could do. I said there were two reasons – firstly when women got to their 50’s they started to re-evaluate their life and their career as their children may have finished university and become independent so they can think about themselves more. He nodded sagely as he considered this information. Secondly, I told him, was the menopause. A few of the men on the table coughed and searched for the wine list but this enlightened man was truly interested and curious to understand more.
Why does the menopause have such an impact at work? I totally understand that it is hard for men to understand this, you really need to experience it to realise the impact that lack of sleep, constant hot flushes, brain fog, emotional mood swings, (to name but a few symptoms) can have on your ability to perform at work. And what woman wants to publicly announce she is going through a very difficult time of her life in a world where women are already fighting to maintain their place in the workplace and retain their dignity?
Women are now working well into their sixties so this is an increasing issue and the debate needs to become more public. Some women will just be able to manage it – for each one it is different, but others may really struggle with symptoms and need additional help.
Below are some of the issues that women face and examples of how employers can assist in the workplace:
- Hot flushes are the most common symptoms and can cause issues if the workplace temperature or ventilation is uncomfortable. If your staff have to wear protective clothing or a uniform this could make it worse.
- Many women suffer from dizziness and fatigue. Water infections can become more frequent resulting in an increased need to use the toilet.
- In a lot of cases women experience increased levels of stress due to the changes occurring in their body. A woman can also experience confidence issues and heavy workloads, inflexible hours and a lack of understanding can have a huge impact.
- Some women may also suffer from exhaustion, depression and anxiety attacks due to the change in their hormone levels and this may affect their ability to concentrate.
- Other symptoms may include nausea, depression, irritability, indigestion and headaches which may also affect their ability to attend work.
And legislatively for organisations it is now a real issue that needs to be addressed. Menopause is covered under the Equality Act 2010 and cases have now been won at tribunal and others are on the radar – they could also be linked to age, gender or even disability discrimination. Although menopause is not considered to be a disability in itself – it is a natural phase in every woman’s life – menopause symptoms can give rise to a section 6 Equality Act disability provided the symptoms have a long-term and substantial adverse effect on normal day-to day-activities.
Merchant vs BT (2012) was the first menopause tribunal case on the grounds of gender discrimination. She was experiencing difficult menopausal symptoms, which were affecting her performance at work. She was suffering from stress and poor concentration levels. Their performance management process required managers to examine whether underperformance was due to health reasons. But her line manager chose not to consider the impact of menopause or seek further expert opinion. The manager failed to take into account her evidence or seek appropriate expert advice. The company dismissed her and she took them to tribunal. They upheld her claim on the basis that the manager would not have approached a non-female-related condition in the same way. They also found the employer would have treated a man suffering from similar symptoms differently.
The tribunal decision stated, ‘It is self-evident that all women will experience their menopause in different ways and with differing symptoms and degrees of symptoms’.
More recently the first menopause-related tribunal that was won on the grounds of disability discrimination was Davies vs Scottish Courts and Tribunal Service SCTS (2018) who was dismissed because she had kept medication for a menopause-related symptom (cystitis) on her desk in a water jug. Concerned that two men had drunk from her jug she alerted them to the fact it might contain medication. It later transpired that it didn’t, the health and safety team conducted a rigorous investigation, and she went through a disciplinary action and was dismissed on the grounds of gross misconduct which she unsuccessfully appealed.
The tribunal’s ruling was that the claimant was unfairly dismissed and subjected to disability discrimination. The tribunal ordered reinstatement to her post, and ordered payment for compensation of loss of earnings and injury to feelings.
Could this lead to future claims?
Clearly it could! Employers must tread carefully to avoid unfair dismissal, sex discrimination, disability discrimination and age discrimination cases. Remember, this could be direct discrimination, indirect discrimination arising from a disability, failure to make reasonable adjustments, victimisation, and/or harassment.
So what can employers do to avoid this?
Take the taboo away from the subject so that people feel they can openly discuss it
- Find a comfortable way to educate people by raising understanding and awareness of menopause
- Ensure there are guidelines or guidance documents for line managers and colleagues whilst also ensuring managers recognise that all women may experience symptoms in a different way
- Ensure managers make people feel comfortable about talking to them if they have symptoms that are impacting on them
- Ensure there is access to occupational health if required
- Offer appropriate reasonable adjustments and support, considering related symptoms in the workplace environment e.g. facilities and uniforms
- If approaching formal performance processes consider that menopause symptoms could be classed as disablement to ensure you deal with issues in a fair and reasonable way
- Be accommodating to any flexible working requests
- If you have an Employee Assistance Programme (EAP) in place, communicate regularly the services that female employees might find useful
- It is also important that any sickness absences related to the menopause are recorded as an on-going issue rather than a number of short-term absences which may cause the sickness absence procedure to be implemented.
Above all, we need to remember that menopause is a natural phase in a woman’s life. Some women sail through menopause while others will need more support. And as we know that more women are now returning to work after having children it is important for employers to ensure that they have sufficient support in place to give women the support they need through the menopause transition.
Emerge are experts in Inclusivity and Diversity, so if you would like support with this subject or any other aspect of diversity please contact us.