The law is failing women going through menopause

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Article by Anne Mannix, employment law partner at Spencer West

Menopausal symptoms can have a huge impact on some working women. Many employers are not aware of the situation because a lot of people experiencing symptoms suffer in silence.

Other employers chose not to take effective steps that can help.

As an employment lawyer I have dealt with cases involving menopause and perimenopause, and some years ago I found myself struggling at work because of menopausal symptoms. The lack of a specific legal protection for menopause, and the difficulty in bringing claims means that the number of women bringing successful tribunal claims is currently very low.

Women aged 45 – 64 are the fastest growing economically active group in the UK, and all women (and some transgender, non-binary and inter-sex people) will go through the menopause. It is time for employers to take this issue more seriously and that could mean increasing legal protection and certainly increasing awareness. Women should not feel – or be made to feel – that the solution is to give up their jobs.

Menopause in the workplace

Symptoms of menopause – brain fog, mood swings, heavy bleeding, sleep deprivation, exhaustion, headaches, joint pain and hot flushes – to name just a few, can be very debilitating. Time off work is often needed and sometimes performance at work is affected.

The majority struggling with symptoms find it difficult to broach the subject with their employers to get help. Many would rather leave than have to discuss menopause with their manager. Others may be afraid that they will (and often do) receive adverse treatment, much of the time through ignorance. Many of those who take sick leave to deal with symptoms are too embarrassed to say the real reason for absence and GPs very often put the reason down as stress/anxiety.

Raising employer awareness, providing information and training are key to improving the workplace for many people suffering symptoms. Notable examples of employers who have embraced this are Vodafone, Santander, Aviva and  Channel 4.

The problem with the UK law

I’ve delt with cases where women going through the menopause have had no support from their employer and if their performance at work is affected, performance management procedures have been started, which may even end up in dismissal. In other cases, women have been subjected to some other detriment at work, such as a demotion.

Legal protection for adverse treatment because of menopause, such as teasing, harassment or failing to provide training or promotion, would require a claim to be made to an employment tribunal within the confines of existing discrimination legislation. Claims for dismissal because of menopause should be brought as both discrimination and also (in cases where the employee has at least two years’ service) unfair dismissal.

Most menopause cases are currently framed as direct disability discrimination where the test is whether the treatment was ‘unfavourable’. As a matter of policy, it seems demeaning to have to claim ‘disability’ for something that is a normal part of life, but also, to qualify as a disability, the effects of symptoms have to last at least 12 months (long-term) and have a substantial adverse effect on normal day-to day-activities.

Claiming adverse treatment because of menopause as sex/gender or age discrimination is problematic. For direct sex or age discrimination claims the test is whether the treatment was ‘less favourable’ – i.e., the claimant has to cite a suitable comparator (real or hypothetical), whose circumstances should not be ‘materially different’ but who was treated more favourably or would have been.

It is easy to see why employees could have little confidence or trust in the current legal protections when advice from employment law specialists will include the difficulty of identifying the legal claim, the confusing situation as to what remedy and the risks of failure. Add to that the costs of legal advice for pursuing the claim, where normally each party bears its own costs. Discrimination claims can be technically complex at the best of times, so it is no wonder there are so few actual claims, despite the large numbers of people affected by adverse conduct in the workplace because of menopause.

Is it time for a stand-alone legal right for menopause protection?

Is a legal protection that is so complicated of much use to those who need to rely on it? The process could be simplified by a government policy decision to create a new protected characteristic: ‘menopause discrimination’.

It took a few years (in the 1990s) for the law to recognise that discrimination arising from pregnancy is sex discrimination. That concept is enshrined in the Equality Act 2010 where protection for pregnancy or maternity discrimination exists as a stand-alone right.

So why not protect adverse treatment arising from or because of menopause with a stand-alone right? Such a right could also extend to requiring employers to make reasonable adjustments to support people experiencing menopause.

This could be a more positive approach, geared to incentivising employers to look for solutions which keep people in their jobs, rather than merely providing menopausal people redress in the form of compensation through a tribunal claim after it has all gone wrong.

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