Recently released data show that references to the menopause in cases of unfair dismissal or direct sex discrimination at employment tribunals have increased significantly over the last four years.
In figures released by Menopause Experts, there were five employment tribunals in the UK in 2018 that made a reference to the claimant’s menopause. However, this rose to six in 2019, 16 in 2020 and there have been 10 in the first six months of 2021 alone.
Speaking in The Guardian, founder and chief executive of Menopause Experts Dee Murray said: 'We regularly hear horror stories about how women are discriminated against in the workforce, and sadly menopause is one area where employers keep getting it wrong. This dramatic rise in the number of employment tribunals citing menopause shows how women are standing up for themselves against outdated and ill-informed bosses.
'I can see that this will carry on building until such time as there are some really big, group lawsuits, which I’m sure there will be. The women in a lot of the big companies are already setting up their own private, internal menopause support groups. If they decide their issues are not supported by HR, you could potentially have a real problem.'
While the rise in cases does suggest women are feeling increasingly confident to challenge employers and working conditions that don’t address the impact that the menopause has on them, experts also say it is worrying that both employers – and tribunal courts – don’t have a clearer understanding of the issue.
In one case, a claimant who faced 12 hot flushes a day and was regularly awakened by night sweats was ruled disabled by reason of the menopause. However, at another tribunal, an employee’s claim to be ruled disabled on account of her menopausal symptoms was dismissed by the judge.
Jenny Walker, employment associate at international law firm DAC Beachcroft LLP said: 'Within the current framework in the Equality Act, there is no distinct protection for women going through the menopause, so any claims must be brought as either age, sex or disability discrimination claims, or a combination of those. Whether the current legal framework adequately protects women from discrimination in the workplace as a result of menopause is one of the issues that is being considered in the ongoing inquiry by the Women and Equalities Committee, and it may be that we see changes to the legislation arising out of that.
'Arguably, the law does provide the protection that is needed from a strictly legal perspective, but the language used may deter some potential claimants – for example, because women going through menopause may not appreciate that their symptoms could amount to a disability for the purposes of the Equality Act. However, the legal definition of disability under the Equality Act is very wide and the case law shows that menopausal symptoms may amount to a disability if they have a substantial adverse effect on normal day-to-day activities. This won’t be the case for every individual as it will depend on the severity of their symptoms, but a significant proportion of women going through menopause are likely to be covered.
'Employers should be alive to the fact that this means they need to put in place reasonable adjustments to address the disadvantages that women may suffer as a result of the menopause, in the same way as they would for any other employee with a disability. Employers should listen to what their employees are telling them and seek medical advice from occupational health if this is available, or from the employee’s own GP. This will avoid employers falling into the trap of relying on stereotypes and assumptions, which is often the starting point for discrimination claims.'
Women aged 50 to 64 are the fastest-growing economically-active group in the UK, with almost 4.5 million women in this age bracket currently in work. Until recently, though, the menopause and its impact has rarely been discussed. Research suggests the UK could be losing up to 14 million work days a year due to the menopause, and 25% of women with menopausal symptoms have considered leaving their job.
'IOSH encourages businesses to best support menopausal women as part of a holistic organisational approach to employee health and wellbeing, that relies on age and gender-appropriate risk assessments'
However, worldwide, the menopause presents an even bigger issue.
'This is a global problem – there are 657 million women aged 45-59 worldwide, of whom 50% are employed and potentially impacted by issues of menopause at work. And while women employed in larger companies seem to be the focus of research at the moment, what about those women employed in other sectors?' said IOSH occupational health research programme lead Karen Michell.
'We would advise IOSH members to gain knowledge of what the menopause is and how it affects women. Ensure it informs risk assessments that are reflective of the needs of menopausal women, create a supportive organisational culture, and lobby management for workplace improvements. It’s important to support women at all stages of their reproductive life cycle – the ‘3Ms’ – menstruation, maternity and menopause. Also, promote healthy lifestyles for all, as this has been shown to be associated with less severe symptoms.'
IOSH's head of health and safety, policy and operations, Ruth Wilkinson, reiterated this approach: 'IOSH encourages businesses to best support menopausal women as part of a holistic organisational approach to employee health and wellbeing, that relies on age and gender-appropriate risk assessments to make suitable adjustments to the physical and psychosocial work environment, the provision of information and support, and training for key functions such as line managers.
'Our response to the menopause and the workplace consultation supports building the policy and business case around the promotion of more empathic work cultures and the promotion of menopause-friendly workplaces as a means to achieve a much-needed level playing field for women at work.'