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Currently, menopause policies are not legally required but they could be soon.

tribunalsHowever, organisations should be keenly aware that putting support in place right now is the best practice, to avoid leaving themselves open to risk of tribunal.

Under current legislation, menopause is covered under the Equality Act 2010, under the protected characteristics of sex, age and disability. It also falls under the remit of the Health and Safety at Work etc 1974, which covers occupational health and safety.

While it currently isn’t a protected characteristic in its own right, this is being given some consideration. A Parliamentary inquiry ‘An invisible cohort: why are workplaces failing women going through menopause’ is underway, led by the Women and Equalities Committee. The inquiry is examining whether current legislation and workplace practices go far enough, or if we need further measures.

And if that isn’t ringing some alarm bells with employers who don’t currently see menopause support as important, perhaps this will. We are seeing a steep increase in the number of successful tribunals relating to menopause. These can see organisations incur huge costs, including any monetary award if they lose. Along with, of course, a serious dent in their reputation as a responsible employer.

We know that more women than ever before will experience menopause at work. And common menopausal symptoms may amount to a disability.

Employers may discriminate against an employee if they:

  • Fail to make reasonable adjustments.
  • Don’t assess whether there is any causative link between menopause and
  • the employee’s behaviour before taking action.
  • Make offhand comments relating to menopause, as these may amount to harassment.

And this is not what any employer, or employee, wants to happen. Which is why it’s so important for workplaces to take menopausal symptoms seriously, put support in place and have open conversations with employees.

Here, I’m going to explore some successfully brought employment tribunals, and look at what we can learn from them.

Donnachie v Telent Technology Services Ltd (2020)

The claimant had found her menopausal symptoms, particularly hot flushes accompanied by palpitations and anxiety, had become intrusive and disruptive. She was also experiencing disturbed sleep.

Her GP provided a letter stating that the claimant had presented to him with typical features of menopause which were causing her significant distress and that he had seen her multiple times.

The question asked by the tribunal was to consider whether typical symptoms of menopause could amount to a disability.

In his findings, the judge said: “I see no reason why, in principle, typical menopausal symptoms cannot have the relevant disabling effect on an individual. I have little hesitation in concluding that the effect of her menopausal impairment on her day-to-day activities is more than minor or trivial. The range of her daily activities and her ability to undertake them when she would wish, with the rhythm and frequency she did, is markedly affected.”

Employers may not know such additional protection is required for menopause and related experiences, but this decision will hopefully shed some light on the situation for them. It is also a helpful decision for women experiencing difficulties at work related to menopause.

Daley v Optiva (2020)

This employee was in her 50s and suffered physical symptoms such as hot flushes, night sweats, headaches, joint pain and tingling extremities. Mentally she endured anxiety, panic attacks, disrupted sleep, memory lapses and difficulty concentrating. She’d also been diagnosed with an overactive thyroid. Her symptoms were described as arising predominantly from menopause.

She issued tribunal proceedings, alleging amongst other things, that her employer had failed to make reasonable adjustments to cater for her disability. This was a preliminary hearing.

The judge had to consider whether or not she was disabled within the meaning of the Equality Act. The tribunal found that this employee’s difficulties with concentration, memory and fatigue impacted substantially on her ability to remember work processes and to read and understand documents. She had significant difficulty in continuing her active social life and was so tired during the day she was unable to watch a film through to the end without falling asleep.

Her symptoms were long term because by the time she came to tribunal they’d persisted for more than two years. The tribunal ruled that she was disabled and that has opened the way for her to pursue her claim to a full hearing.

Gallacher v Abellio Scotrail Ltd (2020)

This employee was dismissed following the breakdown of her relationship with her manager. She claimed unfair dismissal and disability discrimination, which she said were due to symptoms arising from menopause and depression.

Issues came to a head during a performance review meeting at which Ms Gallacher was dismissed. She had been given no warnings and no procedure had been followed or a right of appeal given. These are basic elements that Acas expects an employer to follow.

However, despite these omissions the dismissal was held to be fair and non discriminatory. Because Ms Gallacher had underplayed her symptoms and was unaware she was disabled at the time, her employer could not have known either, which was why her case failed.

This ruling show us that there is an imperative for an employee to make their symptoms known to their employer, or they could fail at tribunal.

Davies v Scottish Courts and Tribunal Service (2018)

Ms Davies was employed as a court officer, and had substantial medical problems related to the perimenopause. She’d received medical treatment for a number of years and was prescribed medication for cystitis, which she took by dissolving in water.

On one occasion, she returned to the courtroom to find her water jug had been emptied. Spotting two men in the public court drinking water she asked where they’d got from and explained her water was medicated. This was not well received by the men.

Her employer investigated this as a health and safety incident, which led to a disciplinary investigation. Allegations against Ms Davies were that she’d shown no remorse for her actions and didn’t appear worried that men had taken this medication. The investigation concluded she hadn’t shown the values of the organisation and recommended disciplinary action for gross misconduct.

She was referred to Occupational Health, who confirmed she had perimenopausal symptoms. Before the disciplinary hearing took place, Ms Davies realised the men couldn’t have been drinking her water as it wasn’t pink (a sign of the medication). It was due to a symptom of menopause that she had become confused and hadn’t realised.

Given the circumstances, which she’d drawn to the attention of her employer, and medical advice giving a link between her symptoms and alleged misconduct, it’s not surprising that tribunal found she’d been unfairly dismissed and had been discriminated against because of something arising from her disability.

An order was made for her to be reinstated and she received £15,000 back pay and £5,000 injury to feelings.

This was very bad publicity for her employer, and their legal costs, along with the costs of the award, would have been significant.

Kownacka v Textbook Teachers Ltd (2021)

In this case, a recruitment worker with breast cancer was successful in her claim for harassment against her employer. Having discovered a lump in breast, she was diagnosed with breast cancer and needed surgery. She was told she’d be forced into menopause aged 37 and no longer able to conceive children.

She alleged that in conversations, her manager had said: “It’s not like you’re going to die, what do you need that amount of time off for, its only early stages of cancer, it’s no big deal.’

The tribunal found in her favour in relation to harassment, and found her employer showed a lack of insight, sensitivity and empathy which violated the claimant’s dignity and created an offensive environment.

Harassment has to be linked to protected characteristic. The manager hadn’t intended to be offensive but we don’t need to prove intention in a harassment claim. It’s appalling this had to go to tribunal and the manager didn’t know this type of language wasn’t acceptable.

Merchant vs BT

Ms Merchant was dismissed following a final warning for poor performance. She’d previously given her manager a letter from her GP which explained she was going through the menopause and this was affecting her level of concentration at time. The medical evidence was there.

The manager, however, chose not to carry out any further investigation. In fact, he made the mistake of using his wife’s experience and accompanying HR manager’s experience of the menopause as relevant evidence in his decision making. He dismissed her for poor performance.

The tribunal described his approach as bizarre and irrational and said a man suffering with comparable symptoms relating to impacted concentration would not have been treated in the same way. He’d also failed to secure Occupational Health’s medical evidence, despite BT’s policy requiring it.

A vs Bonmarche Ltd 2019

In this case, the claimant claimed she had been subjected to harassment and abuse by her manager over a sustained period, as a female going through menopause. She worked in sales in a supervisory role, and reported to the store manager. Initially they got on well, but things changed when she was going through menopause.

He would humiliate her in front of other staff, they would laugh at his remarks, he suggested she should apply for job elsewhere and called her a dinosaur in front of customers. He suggested she couldn’t staple two pieces of paper together due to menopause, and refused to adjust the temperature in store. The store was going through a restructure and he encouraged others to apply for her job.

She raised it with management and her concerns were ignored. His behaviour got worse. She then suffered a breakdown and was prescribed antidepressants. She returned to the workplace, her manager was cold towards her. Despite HR having agreed she could work four hours a day as part of phased return, he rostered her to work a full week, and said if she wanted to work part time she would have to use holiday.

She resigned and the tribunal held this was because of her manager’s treatment, which led to her becoming mentally unwell. She was awarded £28,000 — £18,00 for injury to feelings and the rest for loss of earnings.

Big lessons to be learned

Nobody wants things to get this far. Not employers and not employees. But litigation will only increase if employers continue to ignore menopausal symptoms which may amount to a disability, or continue to discriminate or make comments which construe harassment.

We need organisations to create more open cultures, where menopause is easily discussed and reasonable adjustments will be considered. Training is key here, for all managers and colleagues, so everyone knows what support is available.

A menopause policy or guidance document, easily accessible and well publicised, can also reduce the risk of tribunal claims, as well as supporting a better working atmosphere.

These could include:

  • What menopause is
  • Its common symptoms
  • How to facilitate open conversations
  • What support is available
  • The types of possible adjustments

Essentially, any employer who creates strong work culture is creating better workplace for everyone.

Jog Hundle is a Partner at Mills & Reeve LLP

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Or get in touch: Menopause@henpicked.net

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