When it comes to menopause and employment law, do you know your responsibilities?
Many managers are unaware that they may be directly or indirectly discriminating against certain members of their team due to a lack of understanding of the impact of menopause on performance.
Many assume that since menopause is not, in itself, a protected characteristic under the Equality Act 2010, that women can’t be discriminated against on the grounds of menopause.
Ignorance of the symptoms of menopause and their potential impact on an employee’s performance may lead managers to fail to provide the appropriate support when it comes to managing sick absence or performance.
Inadequate guidance or policy within the business may lead to confusion around what managers and colleagues should be doing to address and deal with the issue of menopause.
Business owners and senior leaders need to be aware that they have a legal obligation to ensure that those employees experiencing symptoms of menopause that may negatively affect performance are not in any way disadvantaged.
There have been a number of employment tribunals brought about, and won in favour of the claimant, on the grounds of menopause discrimination.
LEGAL PRECEDENT AND MENOPAUSE
The first known case of menopause being cited as a major factor in an employment tribunal was Merchant vs BT (2012).
Here Mrs Merchant won her case on the grounds of sex discrimination.
Mrs Merchant had been underperforming in her role for some time. She had been put on performance management measures a number of times and was facing a final written warning.
She had letters from her GP confirming that due to menopause her concentration had been adversely affected and stating that she was struggling with a high level of stress due to family commitments and caring responsibilities.
Despite this, her male line manager dismissed her claims that menopause was a factor in her underperformance, basing his actions on the fact that his wife and a colleague had been through menopause and not experienced the same symptoms. As a result, he failed to follow BT’s own process and did not investigate Mrs Merchant’s health issues before dismissing her.
Mrs Merchant took BT to tribunal and the judge found in her favour. The judgement was that the manager took decisions that he would not have taken had he been presented with similar symptoms from a male employee. It was pointed out that he had not referred Mrs Merchant to occupational health to investigate her health issues further and described the manager’s approach as ‘bizarre and irrational’.
The first case where disability discrimination was found in relation to menopause was between Davies vs SCTS (2018).
Here Mrs Davies had worked for the Scottish Courts and Tribunal Service for over 20 years and had a flawless record. She was being treated for ongoing menopause related symptoms including anaemia, excessive bleeding and ongoing urinary tract infections.
Reasonable adjustments had been implemented to help her manage her symptoms including a change of duties and being relocated closer to toilet facilities.
She was being prescribed medication for her urinary tract infection in the form of powder to be dissolved in water. On this occasion she returned to her desk to find that her water jug looked to have been disturbed and that two male court visitors were drinking water close by. She could not remember whether she’d put the medication into the water or not and raised her concerns accordingly.
A health and safety investigation followed in which the health and safety team were found to have overstepped their remit in their findings and subsequent report. The detail of which the tribunal found had influenced the outcome of a disciplinary hearing leading to Mrs Davies’ dismissal.
Mrs Davies brought a claim against the SCTS for discrimination on the grounds of disability and won her case. She was awarded approximately £19000 in compensation.
Whilst menopause is not, in and of itself, a disability, many of the symptoms may be categorised as a such if they create a physical or mental impairment that has a ‘substantial and ‘long-term’ negative effect on an individual’s ability to do normal daily activities’.
The most recent case which was won on the grounds of both sex and age discrimination was between Anon vs Bon Marche in December 2019.
In this case there was clearly harassment and bullying on the part of the claimant’s direct line manager. The tribunal found that the claimant had been subjected to humiliating and embarrassing comments in front of her co-workers which had caused her much distress.
Her manager had belittled her in front of customers, referring to her as a ‘dinosaur’ and suggesting she apply for other jobs at other retailers.
In his judgement, Employment Judge McFatridge stated:
“I had absolutely no doubt that in this case the respondent in the person of CB was guilty of harassing the claimant. It was quite clear from the claimant’s evidence that she felt he had created a hostile environment for her and that this was related to her status as a woman going through the menopause. I consider this to amount to unlawful harassment on grounds of age and sex.”
Bon Marche was ordered to pay close to £28,000 to the claimant for loss of earnings and injury to feelings.
AVOIDING THE RISK OF TRIBUNAL
There are a number of measures businesses can take to reduce the risk of being taken to employment tribunal as a result of menopause related discrimination. These include:
Training managers to understand the potential impact of menopause and their personal responsibility not to treat a direct report unfairly as a result of menopause related performance issues.
Encouraging managers to be flexible in finding ways to implement reasonable adjustments. Often these adjustments are simple and cheap. They could include providing a desk fan, a temporary redistribution of work, a simple desk relocation or flexibility around start and finish times.
Having clear written policy or guidance documents, available to all employees, clarifying the direction to take to support those struggling with menopause related symptoms.
Allowing for flexibility around breaks, and the freedom to access toilet facilities easily and whenever needed, without embarrassment.
Adopting a zero tolerance on inappropriate ‘banter’ and demeaning comments.
Looking at absence reporting processes and enabling menopause related absences to be recorded as ongoing health issues rather than a series of short term, stand-alone incidences.
Making use of occupational health to help investigate where menopause symptoms may be impacting performance.
Ensuring managers don’t dive straight into performance management measures before exploring and investigating the health issues that may relate to a drop in performance.
Encouraging regular one to one discussions between managers and their staff.
Awareness is the key to reducing the risk of getting it wrong and ending up with an employment tribunal on your hands.
Menopause Awareness Training is a cost effective way to ensure that all employees understand the impact menopause may have on some employees, breaks the stigma surrounding menopause and helps to open up a channel of communication between managers and colleagues that will benefit the whole business.
Virtual online training has enabled businesses to offer training to all employees, regardless of location or shift patterns and Floresco Training has now delivered dozens of virtual sessions with delegates accessing the training from all over the country/world.
To find out how Floresco Training and Coaching can help to raise awareness of menopause within your business, and help you avoid costly tribunals, give us a call on 01778 302464 or drop us an email to firstname.lastname@example.org