Menopause and Discrimination in the Workplace
RECAP OF DISCRIMINATION
§ The Equality Act 2010 legally protects people from discrimination on the basis of protected characteristics.
§ The protected characteristics of disability and sex could be extended to protect those suffering from menopausal symptoms.
§ S.6 (1) defines a person as having a disability if they have a physical or mental impairment AND the impairment has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities.
§ S.11 - in relation to the protected characteristic of sex, a reference to a person who has a particular protected characteristic is a reference to a man or to a woman or a reference to persons who share a protected characteristic is a reference to persons of the same sex.
HOW DOES DISCRIMINATION ARISE?
Direct discrimination - less favorable treatment because of the relevant protected characteristic
Indirect discrimination – a neutral policy applied to all, but which puts those with the relevant protected characteristic at a particular disadvantage
SEX DISCRIMINATION AND MENOPAUSE
WHAT IS MENOPAUSE?
§ Menopause affects all women, and it is the process of their ovaries losing its reproductive function.
§ The menopausal transition usually lasts 7-14 years. During this transition, the body's production of hormones varies greatly and can cause menopausal symptoms.
§ Menopause can be triggered by a hysterectomy or the surgical removal of the ovaries which produce hormones.
§ The menopausal transition often begins between the ages of 45 and 55.
§ Some studies suggest symptoms are not always the direct consequences of hormonal changes during menopausal transition.
§ Instead, a domino effect may occur, where one symptom causes others. So hot flushes and night sweats are sometimes said to cause insomnia. Insomnia itself is identified as leading to irritability, fatigue and poorer cognitive function.
CONSEQUENCES OF MENOPAUSE SYMPTOMS
§ UK GOV ‘Menopause transition: effects on women’s economic participation’ research report found menopausal symptoms cause:
- Reduced engagement with work
- Reduced job satisfaction
- Reduced commitment to the organisation
- Higher sickness absence
- An increased desire to leave work altogether.
- Negative effects on time management, emotional resilience and ability to complete tasks effectively.
§ This highlights the negative consequences that menopause can have on a women's abilities in the workplace.
§ Women can make a complaint of sex discrimination if they have been treated less favorably than a man would have been as a result of the symptoms of menopause.
MERCHANT V BT PLC 2012
The first menopause tribunal case on grounds of gender discrimination
Ms Merchant was experiencing difficult menopausal symptoms which affected her performance at work. Her GP gave evidence outlining her symptoms.
The employers process required there to be an investigation as to whether the underperformance was due to health factors
However, the company dismissed her for poor performance and did not investigate.
Ms Merchant brought this tribunal claim on grounds of gender discrimination.
§ Tribunal found the employer would have treated a man suffering from similar symptoms differently.
ATTITUDES TO MENOPAUSE
Merchant case highlights negative and dismissive attitudes to menopause in the workplace
It is not just transition symptoms themselves which can make work more difficult to handle. Managers’ and colleagues’ attitudes to women in transition make it difficult too
Only 3% of women in a survey of women working at Australian universities said their employers provided support or training on the menopause for managers
§ Paul (2003) and Matthews (2015) suggest employers tend to regard the menopause as a personal, private issue; and Matthews says there is little guidance for HR professionals on supporting women
DISABILITY DISCRIMINATION AND MENOPAUSE
§ Menopause itself is not a protected characteristic
§ If an individual has menopausal symptoms that is a physical or mental impairment that ‘has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities’, then they will be classified as being disabled and will be protected under the Equality Act
§ MENOPAUSE SYMPTOMS/SIDE-EFFECTS
- Hot flushes
- Difficulty sleeping
- Headaches
- Low mood and anxiety
- Joint stiffness, aches, pains
- Urinary Tract Infections
- Weak bones
- Irritability
- Loss of concentration/memory
- Lack of energy
DAVIES V SCOTTISH COURTS AND TRIBUNALS SERVICES SCTS 2018
§ The first menopause-related tribunal that has won on the grounds of disability discrimination
§ Employee suffering menopausal symptoms and kept medication with water on her desk.
§ Two other employees drank the water, and she was worried it contained her medication.
§ She went through a disciplinary action and was ultimately dismissed on the grounds of gross misconduct
§ Tribunal rule she was unfairly dismissed and subjected to disability discrimination
WHAT CAN EMPLOYERS DO?
§ Conduct an assessment to identify how to make the workplace more comfortable for the individual
§ Encourage an environment of openness and transparency where everyone can talk about menopause.
§ Raising awareness, understanding and education of the menopause.
§ Create accessible, well-publicised policy or guidance documents for colleagues and line managers.
§ Ensure employees feel comfortable talking to their line managers, and in turn that managers feel confident to have supportive conversations with employees. And both have access to occupational health if needed.
§ Offer appropriate reasonable adjustments and support, bearing in mind that women experience menopause differently.
§ Approaching formal processes on the assumption that the employee is disabled, to help you deal with issues in a fair and reasonable way.
§ Flexible uniforms
§ Install fans/air-conditioning
§ Flexible shift patterns