Can going through the menopause give rise to claims in discrimination?

A report published earlier this year by Health & Her revealed that over 370,000 women in the UK had left, or considered leaving their career because dealing with the symptoms of menopause was too difficult in their work environment.  Trans and non-binary employees can also be affected by the menopause.

Dealing with the menopause is a significant issue in an employment context and case law on the topic offers some guidance as to the protections provided to women.

Davies v Scottish Courts and Tribunal Service [2017]

Mandy Davis was employed by the Scottish Court and Tribunal Service as a court officer.  She suffered from heavy bleeding for weeks at a time, anxiety, palpitations and memory loss.  She also suffered from cystitis and had been prescribed medication for this, which she kept in her desk and which she dissolved in water.  Returning to her desk from a court visit one day, she noticed two men drinking water from a jug she had been using to take her medication, and could not remember if she had placed her tablets in it.  She warned the two men and a rigorous health and safety investigation followed, as a result of which Ms Davis was dismissed for gross misconduct.

She claimed she had been unfairly dismissed and that she had been discriminated against because her menopausal symptoms amounted to a disability.  The Employment Tribunal upheld her claims, concluding that she had been dismissed because of something arising in consequence of that disability, namely her conduct in potentially exposing others to drinking her medication had been caused by the confusion and memory loss she suffered as a result of her menopause.  The Tribunal ordered that Ms Davis be reinstated to her post and awarded £19,000.00, including a £5,000.00 award for injury to feelings.

This is the first menopause-related case to win in the Tribunal on the grounds of disability discrimination.  It provides an insight as to the potential claims that could be brought by women suffering from symptoms attributed to the menopause.

Other cases involving menopause rely on the protections offered under the Equality Act 2010 for age and sex discrimination. Claims which can arise from discrimination in this context include indirect discrimination (for example uniform policies which don’t allow for cooling clothes and hiding sweat patches), harassment, victimisation and failure to make reasonable adjustments.

Guidance for Employers

There is helpful guidance published for employers on how to avoid such claims, and to properly support women suffering from menopausal symptoms.  The CIPD and the Faculty of Occupational Medicine suggest1:

Create an open, inclusive and supportive culture by:

  • Holding regular informal meetings between affected employees and managers but also providing alternatives where employees are not comfortable with this, e.g. HR, employee resource groups, or welfare officers
  • Regularly discussing how to support those affected especially at management level
  • Identifying internal support e.g. networks, helplines, online support groups
  • Providing internal training to raise awareness of the issues that might affect employees suffering from menopausal symptoms
  • Encouraging open discussions to normalise the menopause as a natural stage of life
  • Providing information on how to alleviate symptoms and encouraging discussion of any health concerns with their GP

Seek the advice and support of a Health and Safety specialist and:

  • Review workplace temperature and ventilation controls to check if they can be adaptive to those who need them, consider offering a desk location near an opening window or away from a heat source
  • Provide access to suitable washing and changing facilities on and off-site (as relevant)
  • Access to cold drinking water
  • Be flexible about uniforms to allow for cool and comfortable clothes

Manage health and sickness absence, including:

  • Treating those with menopause as someone with a long-term health condition, including making reasonable adjustments, e.g. considering flexible working hours or shift changes if sleep is disturbed
  • Using the support of an Occupational Health Professional
  • Carrying out risk assessments and/or an audit of how the business supports those with symptoms.

If you have any questions or would like your policies reviewed then please contact Angharad Birch.

1Menopause Guide and Guidance on menopause and the workplace


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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