Article by Nyaradzo Nyakatawa and Chris Pavlou, specialist employment lawyers at Excello Law
The retailer Timpson recently announced that it will pay for hormone replacement therapy (HRT) prescriptions for employees experiencing menopausal symptoms. This voluntary move has been praised by both MPs and charities alike.
Last July, the House of Commons Women and Equalities Committee launched an inquiry into workplace issues surrounding the menopause. Hopefully, this will prompt the government to advance meaningful policy proposals to support women during this time; for now, however, it falls to employers to take steps to support staff experiencing difficulties.
Timpson’s move is positive, since it recognises the serious impact that the menopause can have on employees. That said, it remains to be seen whether other businesses will follow suit. They might be wise to do so, not least since, in recent years, Employment Tribunal cases concerning the menopause have been on the rise. The data shows that there were 6 cases in 2019, 16 in 2020 and 10 in the first six months of 2021 alone. Yet this is merely the tip of the iceberg, given the vast number of women affected, and the lack of awareness which too often characterises employers’ responses.
Awareness of the serious health difficulties that the menopause can cause is now becoming more widespread. The issue was even recently highlighted by singer Rod Stewart, who called for greater education about the menopause, as he spoke about the difficulties his wife had experienced. Mr Stewart’s wife, Penny Lancaster is now actively campaigning for better support for women during menopause, and for prescription charges for HRT to be abolished.
The menopause is not currently a protected characteristic under the Equality Act 2010 per se. However, the House of Commons Women and Equalities Commission has mooted recommending that the legislation be changed to specifically recognise the menopause as a protected characteristic. However, although it is not recognised as a standalone protected characteristic at present, women can bring claims as part of an age, sex or disability discrimination claim. These are the bases for many of the claims now coming before the Employment Tribunal.
In terms of the symptoms experienced during the menopause, the NHS notes that 8 in 10 women experience some symptoms, but that, “The duration and severity of these symptoms varies from woman to woman.” The NHS says that “On average, most symptoms last around 4 years from [a woman’s] last period. However, around 1 in every 10 women experience them for up to 12 years.” The symptoms include night sweats, hot flushes, difficulty sleeping, problems with memory and concentration, headaches, mood changes, palpitations and recurrent urinary tract infections. The NHS says symptoms “can have a significant impact on daily life for some women.” The potentially long duration of symptoms is also a significant factor.
It is understandable that those with more severe symptoms could find their ability to work significantly impacted for a long period of time. The Equality Act 2010 defines a disability as a physical or mental impairment which has a substantial and long-term negative effect on a person’s ability to do normal daily activities. “Long term” is defined as lasting for 12 months or more. It is abundantly clear that significant, debilitating, long-term menopause symptoms that last more than a year may meet the legal definition of a disability. In such a scenario, employers have a legal duty to make reasonable adjustments to accommodate the disabled person. Employers should discuss the situation with the employee sensitively and see if suitable measures can be agreed. In some cases, medical reports and occupational health advice may be helpful. It could be that simple adjustments, such as a change of duties or hours of work would serve as a reasonable adjustment, which makes work more manageable. A different working environment, or working from home more often, may also assist employees in managing symptoms.
It has been reported that almost a million British women have left work due to the menopause. Many of these might have been entitled to ask their employer to consider reasonable adjustments to allow for their symptoms. However, many may not have been aware of this legal entitlement. Many could be able to seek compensation, if they were unfairly dismissed, discriminated against, or constructively dismissed due to their menopause symptoms.
To avoid such claims, and to proactively support their employees, employers should take a positive approach to the menopause. This should involve building an understanding of the potential long term health consequences of the menopause and identifying concrete ways to help support employees during it. Promoting greater awareness of the menopause within organisations will no doubt have a positive impact on the welfare and retention of employees and in turn business productivity.
About the authorsChris Pavlou is a specialist employment lawyer and partner at Excello Law
Nyaradzo Nyakatawa is a specialist employment solicitor at Excello Law
