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Menopause matters: There’s no place for insensitive comments at work

Kate Wyatt, Partner in Employment Law - Lindsays

Insensitive comments about symptoms of the menopause are unacceptable and put employers at risk of expensive discrimination claims, a lawyer has warned.

Kate Wyatt, a Partner in the Employment team at Scottish legal firm Lindsays, also says managers need to be careful about how menopause-related absences from work are dealt with and how they respond to colleagues’ needs.

She spoke after she and colleagues assessed the implications of a recent Employment Appeal Tribunal (EAT) on a case involving a local authority in England and as general public awareness about issues surrounding the menopause continue to grow.

In that case, a social worker resigned and brought claims of unfair dismissal, sex and disability discrimination, relying on menopause as her disability.

The issues raised are ones that Ms Wyatt, who spoke at #FlushFest2021 organised by Perth charity Menopause Cafe last year, believes employers need to be acutely aware of.

She said: “Thankfully, many of the taboos that have for far too long surrounded the menopause are starting to be disappear. This is not an issue which should be hidden and it’s becoming less so thanks, in part, to some high-profile women sharing their experiences. 

“The more open mindset we are seeing in wider society needs to be reflected in workplaces too. Employers need to understand what their legal obligations are in greater numbers than they do currently. They would be well advised to take proper guidance on what they need to do.

“We want more women to feel comfortable in talking about the menopause, but they are not going to if they feel they’re going to be subjected to insensitive comments. That’s why cases such as this send an important message.”

Under the Equality Act 2010, employers are required to make reasonable adjustments where workplace practices place those with disabilities (as legally defined) at a substantial disadvantage. This may include women suffering severe menopause symptoms. 

The tribunal was told that the woman involved in the case had a number of menopausal symptoms ranging from hot flushes, sweating and irritability to insomnia, fatigue, stress, depression, anxiety, palpitations, joint pain, memory loss, confusion, poor concentration, migraines, light-headedness and urinary problems. These often left her bed-ridden, mentally and physically unable to manage them and her work. 

She argued that a number of actions by her employer – Leicester City Council –  were discriminatory.

They included a failure to consider reasonable adjustments, insensitive comments made about her hot flushes in the office and issuing a formal written warning for menopause related sickness absence.

She also told the tribunal that an internal appeal against her written warning was heard by an entirely male panel and that the Council refused to ensure a female doctor provided the Occupational Health assessment.

An Employment Tribunal did not find she was disabled, under the Equality Act 2010.

The EAT disagreed – making it clear that the “ordinary” menopausal symptoms suffered were capable of amounting to a disability for legal purposes, potentially triggering obligations to make reasonable adjustments and avoid harassment.

Ms Wyatt added: “This case highlights the difficulties menopausal women face in the workplace and that more awareness is needed to minimise the risk of actionable discrimination. 

“Not all menopausal women will experience such severe symptoms or meet the definition of ‘disabled’ under the Equality Act. As in this case though, symptoms and effects can often be faced with a lack of understanding or willingness to accept the severity and impact for the sufferer.

“Simply viewing the consequences of such symptoms as absence or performance management issues, rather than being alert to the issues at play can lead to discrimination claims and potentially uncapped compensation awards.”

Steps employers can take to reduce and manage risk include training to increase awareness of the symptoms and effects of the menopause. They can also offer support such as allowing personalised temperature control in the workplace, reviewing uniform requirements or adjustments to absence triggers. Many workplaces are also introducing their own Workplace Menopause Policy.

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