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Many employers are now choosing to include menopause support in their portfolio of policies and practices, which can only be a good thing.

employers' responsibilitiesBut while it’s clearly a responsible and moral thing to do, what are the legal responsibilities which employers must meet?

Before I discuss employment law in the context of menopause, let’s examine why it’s so important for menopause support to be introduced at work.

We know that one in eight of the UK’s workforce are women over 50, and that number is rising. Indeed, this is the fastest-growing workplace demographic. Many women still feel there is a stigma surrounding talking about menopause and often try to hide their symptoms at work.

But symptoms don’t just stop when they arrive at work and, left unsupported, can even lead to women leaving their hard-fought careers. This is an issue impacting on employers and employees which needs urgent attention.

Employment law and menopause

The key legislation is the Equality Act 2010, which protects against discrimination, and the Health and Safety at Work etc Act 1974, which protects health and safety.

There are also Acas codes which underpin the legislation and also highlight legal obligations, as well as good employment practices. And of course, these obligations supplement employers’ own internal policies and procedures, which are key to training and educating the workforce.

The menopause is currently the subject of a Parliamentary inquiry, ‘An invisible cohort: why are workplaces failing women going through menopause’. Led by the Women and Equality Committee and chaired by Caroline Noakes MP, the inquiry is scrutinising existing legislation and workplace practices, asking whether they adequately protect employees impacted by the menopause.

Ultimately, the findings will establish if we need to revisit our legislation, particularly the Equality Act, to see if any changes need to be made.

What do employers need to be aware of?

Essentially, employers must act in a fair and reasonable way to protect the health, safety and wellbeing of their employees while they’re at work. There are a number of things to be mindful of:

Unfair dismissal

The law of unfair dismissal imposes a duty on employers to act fairly when dismissing employees. This means the employer must have a good reason for dismissal and must follow its own disciplinary or dismissal processes, or at least the statutory minimum.

With a few exceptions, the qualifying period of service to bring an unfair dismissal claim is two years from commencement of employment.

Constructive dismissal

This occurs when an employee feels forced to leave their job against their will because of their employer’s conduct, for example resigning in response to an employer not taking action if the employee has been bullied or harassed.

Protected characteristics

The Equality Act sets out nine protected characteristics which protect workers against discrimination. The most relevant areas for protection in cases involving menopause are sex, disability and age.

At the moment, pregnancy and maternity is a protected characteristic but menopause isn’t. The equalities enquiry is looking to see if menopause ought to be the tenth protected characteristic.

Direct discrimination

This occurs when a worker is treated less favourably because of their protected characteristic, for example disability, sex or age, and is raised more commonly in menopause-related cases. An example here is where a woman loses out to a promotion opportunity to a less-qualified male.

Indirect discrimination

This is where a neutral policy is applied to everybody in the workplace, but which can’t be shown to be a proportionate means of achieving a legitimate aim. For example, an employee finding it difficult to concentrate as a symptom of menopause might not be able to meet certain performance targets as easily as her colleagues. Those would need to be justifiable to avoid a finding of indirect discrimination.

Defining disability

A person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out day-to-day activities. Substantial is defined as more than minor or trivial, while long term is classed as 12 months or more. Many tribunal cases related to the menopause will be brought under this disability strand. An example here of a disability is poor concentration, where it takes much longer than it normally would to complete a daily task.

Discrimination arising from a disability is where a worker is treated unfavourably, because of something linked to their disability.

So, if a policy practice or physical feature puts the disabled worker at a substantial disadvantage compared to a worker who is not disabled, employers have a duty to make reasonable adjustments that may avoid the disadvantage.

Unlike unfair dismissal claims, discrimination compensation is uncapped and, in the most severe cases, compensation covers loss of earning and pension for the remainder of the employee’s career.

Also, discrimination rights are called ‘day one’ rights, which means there’s no need for the two-year contract of service that’s necessary in unfair dismissal claim. In terms of assessing prospects of success, every case will depend on its own individual facts. But employers are very much advised to follow best practice in order to reduce their risk of being taken to tribunal.

Often simple adjustments are all that are needed, such as adjusting working hours, the support of Occupational Health and HR, good ventilation and access to fresh drinking water.

I’m often staggered to see cases which don’t specifically refer to menopause. They highlight to me that, in some cases, there is still a stigma attached to discussing menopause in the workplace.

Jog Hundle is a Partner at Mills & Reeve LLP

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