Menopause, Employment Law & Workplace Rights

Menopause is a phase of a woman’s life that typically occurs in her mid-to-late 40s or early 50s, and in some cases earlier.  Around 8 in 10 experience symptoms which include physical and psychological changes. While menopause itself is a normal transition, the severity and duration of symptoms experienced can significantly impact all aspects of a woman’s life, including in the workplace.

The Legal Landscape

There has been ongoing debate about the degree to which menopause should be protected by employment legislation.

The Equality Act 2010

Under the Equality Act 2010, workers have a right to be protected from disadvantage or less favourable treatment if they have one or more “protected characteristics”. Menopause itself is not currently a “protected characteristic” for the purpose of discrimination legislation. However, age, disability, sex and gender reassignment are all protected characteristics.

In the last few years, we have seen employees successfully argue that they have been discriminated against on the basis of the above protected characteristics where they have suffered less favourable treatment for reasons connected with their menopause. We have also seen employees successfully argue that they have been unfairly dismissed, or constructively unfairly dismissed, for reasons connected with their menopause.

Employers should therefore be mindful of this and ensure that workers going through menopause are not subjected to harassment, less favourable treatment, or disadvantageous employment decisions connected to their menopause. For example, it is unlawful for an employer to dismiss an employee or stifle a promotion based on menopausal status.

Menopause can legally be considered a disability if the symptoms constitute a physical or mental impairment that has a substantial and long-term effect on a worker’s ability to carry out normal day-to-day activities. Under the Equality Act 2010, employers are required to make reasonable adjustments to support workers with disabilities. Where an employee’s menopause symptoms amount to a disability, these adjustments may include changes to working conditions and hours, or providing suitable facilities, such as fans or access to cool areas. The duty to make reasonable adjustments may also include allowing employees to work flexibly or in a different location (e.g. from home).

Employers should note that even where there is no legal duty to make reasonable adjustments for a menopausal employee, employees will have the statutory right to request flexible working which becomes a day one right as of 6 April 2024.

The Health and Safety at Work Act 1974

Health and safety legislation also comes into play when considering menopause in the workplace. Employers have a duty to ensure the health, safety, and welfare of their workers, which includes recognising and managing menopausal symptoms that may impact their ability to work. This could involve providing access to drinking water, ensuring good ventilation, and considering temperature control measures, and also includes an obligation to carry out a workplace risk assessment.

What is the court’s position on menopause being a disability?

Some commentators have recently argued that menopause should not be viewed as a disability as it is a natural transition. However, from a legal perspective, menopause symptoms can amount to a disability if they meet the legal definition within the Equality Act 2010.

Employment Tribunals will therefore assess whether the employee’s menopause and menopausal symptoms meet the legal definition of disability on a case-by-case basis. Menopause is different for everyone and so its impact on normal day-to-day activities will vary enormously.

In recent years, we have seen more awareness among judges that menopause and menopausal symptoms can be debilitating for some employees and have a significant impact on their work and their day-to-day lives. Therefore, there is a greater readiness to accept that menopause may amount to a disability in such cases.

Rooney v Leicester City Council [2021]

The widely reported Employment Appeal Tribunal decision in Rooney v Leicester City Council [2021] is a good example of this. Ms Rooney suffered from significant menopausal symptoms which led to, amongst other things, her forgetting to attend events, meetings and appointments, forgetting to put the handbrake on or lock her car, leaving the cooker and the iron on and spending prolonged periods in bed with fatigue. The original employment tribunal did not accept that her menopausal symptoms had a substantial adverse effect on her ability to carry out normal day-to-day activities and so held she was not disabled. However, this was overturned by the Employment Appeal Tribunal who held that the original tribunal was wrong to conclude that Ms Rooney’s symptoms only had a minor or trivial effect on her day-to-day activities. The Employment Appeal Tribunal remitted the case to a new tribunal which found that Ms Rooney was disabled within the legal definition under the Equality Act.

Davies v Scottish Courts and Tribunals Service [2018]

We have also seen cases where employees have successfully argued that action taken against them for misconduct or poor performance was discriminatory where the employer has failed to consider the impact of their menopause and its symptoms. In Davies v Scottish Courts and Tribunals Service [2018] Ms Davies successfully argued that her dismissal amounted to discrimination arising from disability when she was dismissed for purportedly lying about colleagues drinking her water. The Tribunal held that Ms Davies was disabled due to her menopausal symptoms and that her conduct was affected by symptoms of her menopause including forgetfulness and confusion. It was therefore disproportionate and discriminatory for the employer to have dismissed her without considering the impact that her menopause and its symptoms had on her conduct and without considering whether a lower sanction would have been appropriate.

Ms Davies was reinstated and awarded £19,000. £14,000 of that was back pay and £5,000 due to injury of feelings.

Lynskey v Direct Line Insurance Services [2022]

Similarly, in the recent case of Lynskey v Direct Line Insurance Services [2022], Ms Lynskey was disabled due to her menopausal symptoms which affected her performance at work. The Tribunal held that the employer’s actions in providing Ms Lynskey with a low appraisal rating and a written warning for performance and removal of her sick pay without warning amounted to discrimination arising from disability as the employer had not properly taken into account the mitigating factor of her menopausal symptoms.

Compensation of £64,645 was awarded.

Other Recent Developments

Despite these recent court decisions, many practitioners and key organisations believe the legal protection afforded to menopausal employees is insufficient.

The Women and Equalities Committee (“WEC”) published its Menopause and the Workplace Report in July 2022. The Committee noted that the fastest growing workforce group is women of menopausal age, and that they are working for longer. However, these experienced and skilled workers receive little support with menopausal symptoms resulting in a large number reducing their hours or leaving work altogether.

The Committee concluded that the current legislation does not effectively support menopausal women and that there is little awareness by employers of the equality and health and safety legal protections that exist. In addition, the Committee concluded that the law does not provide proper redress to those who suffer menopause-related discrimination.

The Committee made several recommendations to address these issues and the Government published its response to the Committee’s recommendations in January 2023. The recommendations and the Government’s response are set out below:

As a result of the Women & Equalities Committee recommendations, we’ve already seen:

• The Government appoint a Menopause Employment Champion, Helen Tomlinson, to progress work with employers on menopause workplace issues.
• Legislation to make the right to request flexible working a day one right. This takes effect as of 6 April 2024.

What recent guidance is available to help employers?

To support those going through menopause, some employers have implemented specific policies or guidelines. These may include training for managers and colleagues to raise awareness and understanding of menopause, as well as providing access to support services such as employee assistance programmes and/or occupational health services.

On 22 February 2024 the EHRC published guidance for employers on menopause in the workplace setting out an employer’s legal obligations under the Equality Act 2010, in particular regarding the protected characteristics of disability, age and sex.

The guidance is also a useful reminder of the risk of claims for failure to make reasonable adjustments, direct and indirect discrimination, harassment, and victimisation and provides information about the menopause and perimenopause and outlines key symptoms and how they can impact workers.

It is therefore a useful tool for employers when training managers and colleagues and can be used to raise awareness of the employer’s legal obligations and also steps that managers and other colleagues could take to support menopausal co-workers.

Summary

While menopause is not directly referenced in UK employment law, those experiencing menopausal symptoms are protected by legislation prohibiting sex, gender reassignment, age or disability discrimination, as well as health and safety legislation. Employers have a responsibility to ensure fair treatment, make reasonable adjustments, and provide a safe and supportive working environment for workers going through menopause. By recognising menopause as a workplace issue and normalising conversations around it, employers and workers can work together to create a more supportive and inclusive working environment.

Further information

Catch up on our webinar “Menopause, Employment Law and Navigating Your Workplace Rights” with Jog Hundle here or check out this blog, “How to survive and thrive during the menopause transition at work“.

About the Authors

Jog Hundle is a partner at Mills & Reeve where she heads the health and care employment team of 20 employment lawyers, having specialised in the sector for over 30 years.

She advises on a wide range of employment matters including high profile disputes with very senior mangers and medical staff, organisational change, TUPE, redundancy, variation of employment terms, as well as complex discrimination, grievance, disciplinary and whistle blowing matters.

Deborah Garlick is the CEO at Henpicked: Menopause in the Workplace, and has been running The Menopause Friendly Accreditation, since its launch 3 years ago. She is also the author of Menopause: the change for the better and founder of Henpicked.net. Deborah is passionate about helping women live better lives by educating on the facts about menopause.