March’s Employment Law Digest – is menopause a disability?

These headlines resulted from the recently published guidance from the Equality and Human Rights Commission (EHRC) clarifying the obligations on employers in relation to their  employees who may be experiencing symptoms of the menopause,  and is an interesting read.

This guidance came about partly as a result of the EHRC becoming increasingly “concerned both by how many women report being forced out of a role due to their menopause-related symptoms, and how many don’t feel safe enough to request the workplace adjustments” (Baroness Kishwer Falkner, EHRC Chair). Clearly, there is an issue there that needs to be addressed and the guidance offers practical advice to employers about what the issue is, and how they might support their staff to make sure they survive, and thrive, in the working environment.

Menopause and perimenopause are explained, along with how the associated symptoms can negatively impact a worker. This includes decreased concentration, increased stress, reduced patience and feeling less physically able, which can lead to workers being absent from work or leaving employment altogether.

The guidance includes three videos; the first explains how a worker experiencing menopause symptoms may be protected under the Equality Act 2010, the second provides examples of adjustments to support workers; and the third provides guidance on having conversations about menopause.

In terms of workplace adjustments, these may include:

• Changes to the physical work environment, such as room temperature and ventilation, providing rest areas and cooling systems, and relaxing uniform policies.
• Promoting flexibility, such as allowing working from home, changing shift patterns, and varying start and finish times.

They also recommend recording menopause-related absence separately from other absence, due to the potential discrimination risks of taking disciplinary action for such absence, and not using language that ridicules a worker’s menopause symptoms due to the risk of harassment.

We have seen several cases going through the tribunals which demonstrate that this is not an area that employers universally tend to get right. In the 2022 case of Thomas v Bibiomoney Global Limited ET/2204661 a fellow director of the Claimant (erroneously) thought it was appropriate to remark to another colleague that the Claimant’s poor behaviour was due to her being menopausal, and in A v Bonmarche Limited ETS/4107766/19 the Claimant’s manager determined that her poor performance was as a result of being menopausal, and referred to her as a dinosaur in front of customers, in an attempt at humour. In fact, analysis of court records by Menopause Experts Group found that the number of tribunal cases which cite menopause increase by 44% in 2021. Employers ignore this issue at their peril.

Menopause isn’t a new issue. However, we do live in times of increasing awareness. In 2017 the Government Equalities Office published a report that recognised the increased rates of employment of women aged 50 and above means that more working women than ever will experience menopause transition during their working lives. Menopause has shifted from something that happens behind closed doors to an important consideration in the world of work.

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However, there is still far less understanding of menopause than there is of pregnancy, for example. As a society we are far more used to dealing with pregnancy in the workplace, and most employers are familiar with the additional protections afforded to women in this protected state. The government has had the opportunity to address this. In its November 2021 report the 50Plus Choices Employer Taskforce, commissioned by the government, recommended that menopause be designated a protected characteristic in its own right. This recommendation was rejected, partly on the basis that the existing protected characteristics of age, sex and disability discrimination provide protection from unfair treatment of employees going through menopause and therefore no changes to the Equality Act 2010 in this respect were required.

There are some challenges in making menopause a protected characteristic in itself. Unlike pregnancy, which lasts for a designated period of time, can be readily monitored and comes to a definite conclusion, menopause, and perimenopause do not. Experiences vary widely between women, medical tests aren’t readily available to determine whether someone is menopausal or perimenopausal, and some women can suffer symptoms for over a decade. This means that women have to rely on the fallback position of these other protected characteristics.

For those who suffer physically and mentally whilst going through the menopause, symptoms can range from bleak to devastating: hot flushes, brain fog and sleep difficulties can either amount to minor inconveniences, or the equivalent of torture techniques we are more likely to be seen during warfare. Some women don’t suffer symptoms at all. For others, the symptoms ravage their professional and personal lives and they simply cannot function as they once did. None of us really know what camp we are going to fall into, or where in the sliding scale of severity we may land.

The list of symptoms, certainly in the most extreme cases, very easily meet the definition of disability under the Equality Act: “a physical or mental impairment that has a substantial and long term effect on the ability to carry out normal day to day activities”. Perhaps what is problematic about having to rely on the protected characteristic of disability is that  this is a hurdle for a woman to get over- an individual would need to demonstrate to an employment tribunal that she was disabled in order to benefit from this protection. Additionally, and perhaps more importantly, it is a challenging idea that something that all women will go through at some point in their lives, may render them “disabled”. Imagine if we referred to pregnancy as a disability? Technically, this can also have a very significant impact on an individual in terms of the definition, but is unlikely to be well received as a label.

So, no, all women are not disabled. Not all women going through the menopause are disabled. But some will be experiencing symptoms so significant that it amounts to a disability and therefore employers are required to make reasonable adjustments for these staff members, to support them during this time.

If you have  any questions about this article please get in touch with  Gillian Chinhengo or another our expert Employment Lawyers