Today, World Menopause Day, I got up at 5.30 am to get the train to the office. This early start brought into sharp focus the impact that menopause can have on the working lives of women. Three years ago I would have taken an early start in my stride, I rarely had a bad night’s sleep. However, although in my early 40s, treatment for breast cancer caused early menopause, and among the symptoms I experience is frequently disturbed sleep. Luckily I did sleep well last night, but if I hadn’t then the early start would have made the day a struggle, thanks to the menopause.
I am not alone. A 2019 survey conducted by BUPA and the Chartered Institute for Personnel and Development (CIPD) found that as many as three in five menopausal women were negatively affected by the menopause in the workplace. Menopause can occur naturally or, as happened in my case, can be caused by medical treatment.
The average age women experience the menopause is 51, with transition often starting several years earlier. The symptoms, and severity of those symptoms, vary from woman to woman and can be both physical and psychological. Common symptoms include, hot flushes, night sweats, insomnia, headaches/migraines, weight gain, memory lapses, anxiety, stress and depression, to name only a few. It is clear to see how these symptoms have the potential to significantly impact on a woman’s working life.
Awareness of these issues is growing, along with increasing momentum backing changes to the law in this area. The House of Commons Women and Equalities Committee is considering evidence on menopause in the workplace and whether further legislation is needed. Caroline Nokes MP, Chair of the Committee, has indicated that amending the Equality Act 2010 to make menopause a protected characteristic cannot be ruled out.
Employment Tribunal litigation relating to the menopause is also becoming more common.
The recent Employment Appeal Tribunal (EAT) case of Rooney v Leicester City Council highlights some of the difficulties in raising cases under the existing legislative framework. In this case Ms Rooney, who worked for Leicester City Council as a childcare and social worker, brought claims of constructive unfair dismissal, disability and sex discrimination, and others. She claimed that she suffered from both physical and psychological effects of the menopause and was a disabled person under the Equality Act.
At a preliminary hearing the Tribunal found that Ms Rooney was not suffering from a disability due to her menopause symptoms, and her claim was dismissed along with her sex discrimination complaints. However, the EAT overturned this decision and remitted the case to the Tribunal to consider these issues again.
Ms Rooney’s case is not unusual. It is common for claims relating to the menopause either to be brought as disability, sex and/or age discrimination. However, arguably the current legislation does not adequately address these issues faced by women. Leaving aside the thorny issue of describing menopause as a “disability”, it can often be difficult for claimants to produce evidence to satisfy this definition under the Equality Act.
Another common difficulty is establishing employer knowledge of disability. Many women are embarrassed, or reluctant, to disclose to their employer that they are experiencing menopausal symptoms. In the Rooney case, for example, Ms Rooney described feeling embarrassed and uncomfortable discussing menopausal symptoms with male managers and colleagues.
Bringing a case for sex discrimination is also not straight forward. A comparator is needed for a direct discrimination claim. In one case a Tribunal held that an appropriate comparator would be a man with a similar health condition. The difficulty is that such a man may have been treated in the same way. It is argued that equating a man with health difficulties with a menopausal woman does not recognise the specific problems faced by menopausal women, and the fact that there isn’t a male equivalent. The arguments appear very similar to the criticisms of the old case law on pregnancy and maternity discrimination, which has since been addressed.
Now in deciding whether a female employee has been discriminated against because of pregnancy or maternity, the test is whether she has been treated unfavourably, rather than less favourably (the test for direct discrimination), and there is therefore no need for a comparator. This approach does not currently extend to the menopause.
Age discrimination is also not without problems; some women experience early menopause and therefore may not be protected.
Against this background it will be interesting to see how the law develops, as it certainly will, over the coming years. However, employers should proactively be considering and addressing this now to ensure they retain a happy, confident and productive workforce and to avoid potential claims. An aging workforce means that there are more employees working through the menopause. Often these are senior and experienced employees who make a valuable contribution to the workplace.
Particularly in the current climate of labour shortages, the loss of talent due to menopause will be an issue employers cannot afford to ignore. Key to this will be training employees and managers to raise awareness and knowledge of the menopause, and ensuring that suitable support mechanisms are in place.
For more information please contact Deborah Miller, Consultant in Shepherd and Wedderburn’s employment team, at [email protected].