Workplace protections for employees in menopause

Where do we currently sit in terms of legal protections for employees experiencing lack of support, harassment and / or discrimination in the workplace as a result of menopause? Kate Lawson of Element Law explains.

I experienced premature ovarian insufficiency in my 30s, so I also have a strong personal understanding of the barriers employees experiencing menopause can face in the workplace. I am a specialist, experienced employment lawyer and work with both businesses and individuals to find practical resolutions to workplace challenges.

In January this year, the Government published its response to the Women and Equalities Committee's Menopause and the workplace report. One of the recommendations made in the report (which was rejected by the Government) was to introduce legislation to make menopause a protected characteristic. This means that the government does not, at this stage, intend to introduce any new laws to recognise menopause as a protected characteristic in its own right.

Before we can understand the implication of this, it is important to understand some of the key terms.

What is a Protected Characteristic? The Equality Act passed in 2010, and which forms the backbone of all discrimination protection in the UK, focuses on the protected characteristics, holding it unlawful to discriminate or harass someone because of a protected characteristic.

There are nine characteristics currently protected in law: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; and sexual orientation.

If you are less-favourably treated because you are experiencing menopause, then you won't have a standalone claim for discrimination. The same applies if you are less-favourably treated because of something resulting from your menopause (a protection currently only available for those with the protected characteristic of disability), or if you are being made to comply with a requirement that those undergoing menopause are less likely to be able to comply with, or if you are subject to jokes, comments or other negative behaviours because of undergoing menopause.

The Government has said that it might consider an expansion of the current duty to make reasonable adjustments for those who have a disability through an extension of the definition of disability, which may put a positive duty on employers to make reasonable adjustments to accommodate menopause symptoms. However, there is no plan in place for these changes as yet.

Where does this leave the options for those who consider they are encountering discrimination at work because of menopause? What can you do if your requests to your employer for support in your menopause are being ignored or, worse, you are being overlooked for promotion or performance managed because of the impact of menopause symptoms on your performance? Or, indeed, if jokes are being made about menopause?

It is worth bearing in mind that there is an implied duty of trust and confidence between employer and employee and, if the employer breaches that duty, that can be a cause for a claim for constructive dismissal, provided the employee has at least two years' continuous service. Such a claim requires resignation and it would hopefully not be necessary to get to that point. The point, however, is that your employer should not act in a way that destroys, or is likely to destroy, trust and confidence.

If your manager is ignoring your attempts to have a sensible discussion around accommodation of your menopause symptoms and how these should be taken into account for the period you are undergoing them, it is, of course, sensible to speak with HR. It is also important to request a referral to any internal Occupation Health service your employer may use. If this is not available, a letter from your treating doctor may be helpful. If your symptoms are to the extent that you are potentially looking to have your menopause condition recognised as a disability, it will be important to obtain medical information early on (please see below for further comment on this point).

If these routes do not yield supportive results, you may need to bring a formal grievance under your employer's grievance policy. This should lead to a meeting with someone other than your line manager, at which you can further explore your complaints. It is important to try to be clear what you want out of this process.

Your grievance may also include allegations of discrimination and / or harassment based on the existing protected characteristics. Employment tribunal case law demonstrates how an employer's treatment of staff experiencing the menopause can potentially give rise to claims for unlawful discrimination at work. There are cases where poor treatment, bullying and harassment (jokes, undermining comments) of women because of their menopause or menopause symptoms have been found to constitute age, sex and / or disability discrimination.

The sex or gender element is because menopause is a female condition. If a manager, for example, would not adopt the same attitude with other, non-female-related conditions, then that can amount to sex discrimination.

It is also possible that menopause symptoms may amount to a disability if they meet the definition under the Equality Act. A condition is a disability if it lasts or is expected to last more than twelve months, and has a substantial adverse effect on the sufferer's ability to do their normal day-to-day activities, such as carrying out household chores, walking, reading, writing, using a computer and sleeping. There is case law where employees undergoing menopause were found to be disabled under this definition and therefore protected from discrimination because of, or harassment related to, the menopause. An employer is also under a positive duty to make reasonable adjustments to support and alleviate the substantial disadvantages in which a disabled employee is placed by their condition.

For both employers and employees, a broader approach aimed at a cultural shift in management of midlife matters is always preferable of course to fighting each case individually, but where this door is closed, unfortunately in some cases only tribunal litigation may provide the protection required.

For more information, please contact Kate via: www.elementlaw.co.uk, where you can also access newsletters and podcasts.

RDPI runs a number of CPD-accredited courses around supporting people in the workplace and in-depth knowledge around menopause (Menopause Demystified) and Male wellbeing.