Many people experience menopause symptoms whilst they are at work. Symptoms may impact upon an employee’s performance and workplace attitudes may negatively affect how and employee is treated. There are currently no menopause-specific employment laws. However, some existing laws, such as those relating to discrimination, may provide some protection to menopausal employees in some circumstances. In this blog I consider some of the employment law issues arising out of the menopause.
What Are The Symptoms Of Menopause?
Symptoms of perimenopause and menopause vary and can be severe for many people. Symptoms can be both psychological and physical, with recognised symptoms including anxiety, mood swings, problems with memory and concentration, hot flushes, sleep disturbance and headaches. These symptoms can, inevitably, impact work and might cause the employee to be absent from work or even leave their job altogether.
Although there is no menopause-specific law, it is recognised that menopause has a workplace impact that needs to be addressed. Employers are being encouraged to introduce workplace menopause policies and consider how those experiencing menopause can be supported at work.
Menopause And Discrimination
Currently, menopause is not a protected characteristic under the Equality Act 2010. However, depending on the facts, those experiencing menopause may instead be able to bring separate discrimination claims relating to the existing protected characteristics of age, disability, or sex. In addition, trans-people experiencing menopause symptoms may be able to bring discrimination claims based on the protected characteristic of gender reassignment.
Menopause And Age Discrimination
Although there are exceptions, most people who experience menopause do so between the ages of 45 and 55. Therefore, discrimination issues could arise where those of menopausal or post-menopausal age are treated differently to those in other age groups. Menopause-related age discrimination claims tend to be brought by menopausal or post-menopausal women alleging that they have experienced less favourable treatment or disadvantages.
Menopause And Disability Discrimination
Those claiming disability discrimination must show that they have or had a disability for the purpose of the Equality Act 2010 at the relevant time.
The question of whether someone with menopausal symptoms is disabled will be considered on a case-by-case basis but by reference to the statutory definition of disability, which states:
“a person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day to day activities”.
Therefore, for people whose menopause symptoms are severe and significantly impact on their quality of life and ability to work, could satisfy the definition.
However, for many people who experience menopause symptoms, these are mild to moderate which, in practice, means it may not be possible to satisfy the definition of disability under the Equality Act, and therefore those people do not quality for protection under the disability discrimination provisions of the Equality Act based on their menopause.
Unless the employer accepts that menopause is a disability, the burden of proving that lies with the employee. The employee will need to provide evidence to the Employment Tribunal of the extent of their symptoms and the effect of these symptoms on their day to day activities at the relevant time.
An employee might be wary of speaking to their employer about their menopause symptoms and any issues these symptoms are causing at work. However, an employer cannot be held liable for certain types of discrimination unless it knew, or should have known, about the employee’s disability.
Menopause And Sex Discrimination
Although menopause symptoms may affect some people who do not identify as women, most women experience menopause. Therefore, where a woman is treated less favourably or suffers a disadvantage related to menopause, this could give rise to a claim for sex discrimination.
Menopause And Gender Reassignment Discrimination
Menopause affects anyone who has a menstrual cycle, which may include trans-people. Where an individual is proposing to undergo, is undergoing, or has undergone, a process (or part of a process) to reassign their sex, they are protected from discrimination under the protected characteristic of gender reassignment. If an individual with the protected characteristic of gender reassignment is experiencing menopause symptoms and is treated less favourably than a woman experiencing menopause symptoms, this may give rise to a claim.
Menopause And Unfair Dismissal
When dismissing employees, employers have an obligation to fairly dismiss, which means that dismissal must be for one of the potentially fair reasons, being: –
- Capability or qualifications;
- Conduct;
- Redundancy;
- Statutory restriction; or
- Some other substantial reason.
In addition, employers must act reasonably in all the circumstances when deciding to dismiss.
In the context of an employee suffering from menopause symptoms, this may affect their conduct. As in all misconduct dismissals, an employer must demonstrate that it has carried out a reasonable investigation before the dismissal. If the employee argues that their menopause affected or caused their behaviour, it is unlikely to be unfair for the employer to dismiss without considering whether this could be the case. Similarly, where an employer is considering a capability dismissal because of poor performance, but the employee argues that menopause has affected their performance, it is likely to be unfair for the employer to dismiss without first having considered what effect menopause may have had.
Bringing A Claim
Menopause discrimination claims can be complex, particularly if several protected characteristics are relevant.
There are strict time limits for bring claims in the Employment Tribunal. See https://lincslaw.co.uk/blog/time-limits-in-the-employment-tribunal/.
Very generally, compensation can be awarded for any financial loss arising from the discrimination, and in addition an Employment Tribunal can award a sum for injury to feelings. See the following for more information about injury to feelings https://lincslaw.co.uk/blog/discrimination-and-injury-to-feelings/
Lincs Law Employment Solicitors Can Help You
If you would like advice on your own situation, please contact us for a free enquiry on 01522 440512 or via the webchat or contact form on our website at www.lincslaw.co.uk
Kathryn Bolton
Associate
Specialist Employment Solicitor
Lincs Law Employment Solicitors.
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