30 April 2019 #Employment
Research from the CIPD suggests that menopause in the workplace remains mismanaged and shrouded in silence, despite impacting an increasing number of employees.
The NHS states that the average age for menopause transition in the UK is 51. Women over the age of 50 are the fastest growing group in the UK workforce according to the Office for National Statistics, with the number of 50 to 64-year-old women in work currently at 4.4 million.
In a 2019 CIPD and YouGov survey of 1,409 women, three out of five working women between the ages of 45 and 55 who are experiencing menopause symptoms said it has a negative impact on them at work.
Of those, nearly two-thirds (65%) said they were less able to concentrate, more than half (58%) said they experienced more stress and a similar figure (52%) said they felt less patient with clients and colleagues.
Nearly a third of women surveyed (30%) said they had taken sick leave because of their symptoms, but only a quarter felt able to tell their manager the real reason for their absence, due to privacy considerations (45%), embarrassment (34%) and managers being perceived as unsupportive (32%).
Similar research from Health & Her and Censuswide indicates that women in this demographic have left or considered leaving their careers because of the difficulty of dealing with symptoms in the workplace. The most common symptoms reported in the CIPD’s survey are hot flushes (70%), sleep disturbances (64%) and night sweats (58%). Psychological issues such as mood swings, anxiety and memory loss were also widely reported (56%).
In response, the CIPD has recently issued free guidance (https://www.cipd.co.uk/knowledge/culture/well-being/menopause) aimed at educating and training line managers to provide better support to affected employees.
Employers have a duty to protect the health and wellbeing of their workforce and not to behave in a way which may undermine the implied duty of trust and confidence. Given the ways that symptoms can manifest, it is important that line managers don’t jump the gun and resort to performance management or disciplinary procedures without considering the underlying cause – especially where the extent of the transition symptoms experienced by the employee are such that they amount to a disability.
The case law on menopause transition in the UK is limited and non-binding but gives an indication of how potential claims could arise.
Direct sex discrimination – In Merchant vs BT plc ET/1401305/11, Ms Merchant was dismissed following a final warning for poor performance. She had previously given her manager a letter from her doctor explaining that she was “going through the menopause which can affect her level of concentration at times”. In breach of BT’s performance management policy, the manager decided not to investigate her symptoms any further. The tribunal upheld her claims of direct sex discrimination and unfair dismissal. It held that the manager would never have adopted “this bizarre and irrational approach with other non-female-related conditions”. The manager also wrongly decided that his wife’s experience was relevant evidence for his employee’s.
Disability discrimination – In Davies v Scottish Courts and Tribunals Service S/4104575/2017, Ms Davies was found to have been unfairly dismissed and reinstated to her role with back pay and injury to feelings compensation. The judge found that she had been dismissed “because of something arising in consequence of her disability” (section 15 of the Equality Act 2010). She suffered from transition symptoms which included heavy bleeding, as well as stress, memory loss and other symptoms. Her employer managed the requisite reasonable adjustments well. However, she could not recall if her tablets had been placed in a jug and there was a risk that two male colleagues had drunk from that jug. She was accused of lying and bringing her employer into disrepute, and consequently dismissed. It was held that she was unfairly dismissed because, during its investigation and in making the decision to dismiss, her employer did not consider that her “conduct was affected by her disability”. Her memory loss and confusion were in fact caused by her disability (which was in turn the result of her transition).
Other possible claims
The CIPD guidance provides further practical suggestions to help employers create a supportive culture that allows women to thrive in the workplace during menopause – something that benefits employers and employees alike.