Menopause and employment law: where do you stand?

Women continue to face discrimination in the workplace owing to their menopausal symptoms so knowing your rights is paramount

• Around 14 million working days a year in the UK are lost to menopause symptoms
• Employers have a duty to ensure the health, safety and welfare of their staff
• Discover how to talk about the menopause at work and get support

Women of menopausal age (45-54) make up 11% of all people in employment and 23% of all women in employment [1]. Many women can experience perimenopausal symptoms for years before their menopause, with three in 100 women going through the menopause before they are 40. It is perhaps then no surprise that women experiencing menopausal symptoms represent the fastest growing demographic in the UK workforce, with nearly eight out of ten being in work [2]. 

Yet research suggests a lack of awareness regarding the menopause, with the impact of discrimination resulting in vast numbers of women leaving the workforce. This is at a time when many of these women are at the height of their careers and should be reaping the rewards of their years of experience.

While the average age women in the UK experience the menopause is 51, retirement age is now 68. Early departure from the workplace is not only distressing for the women involved, but it has a huge impact on the UK economy, which is losing out on their skills.

In 2022, balance founder Dr Louise Newson conducted a survey for her book, The Definitive Guide to the Perimenopause & Menopause, of 3,800 perimenopausal and menopausal women about their experiences in the workplace. Significant findings included that 99% of respondents said their perimenopausal or menopausal symptoms had led to a negative impact on their careers; 59% had taken time off work due to their symptoms; 21% passed on the chance to go for a promotion they would otherwise have considered; 19% reduced their hours and 12% resigned.

While some women leave work because of the challenge of dealing with their symptoms at work, others feel unsupported or even discriminated against and are unaware of their rights.

RELATED: explore balance workplace resources

What does the law say?

The Advisory, Conciliation and Arbitration Service (Acas) advises employers that they should be aware of how the menopause relates to the law, including the:

• Equality Act 2010, which protects workers against discrimination
• Health and Safety at Work Act 1974, which says an employer must, where reasonably practical, ensure everyone’s health, safety and welfare at work

Unlike, say, age or sex, the menopause is not a specific protected characteristic under the Equality Act 2010, and there is debate over whether this should be the case. The Women and Equalities Committee’s report on menopause and the workplace recommended that menopause should be made a protected characteristic, meaning a woman could not be discriminated against because of her menopausal symptoms. However, in May 2023, the government rejected the recommendation – one of the reasons was the possible unintended consequence of creating new forms of discrimination, such as towards men suffering long-term medical conditions.

More recently, in February 2024, the Equality and Human Rights Commission (EHRC) released new guidance on menopause in the workplace, setting out employers’ legal obligations under the Equality Act 2010. The aim is to clarify the legal obligations for employers but also to provide practical tips on making reasonable adjustments for affected employees.

It is important to note that, contrary to some of the recent press coverage, the legal position regarding how certain provisions within the Equality Act relate to menopause-related challenges in the workplace has not been amended or added to by the EHRC and remains unchanged.

Is the menopause a disability?

As it stands, if an employee is treated unfavourably because of their menopause symptoms, this could be classed as discrimination under the category of age, sex or disability. Emma Hammond, a partner at gunnercooke LLP, specialises in employment law and advises women who have suffered discrimination in the workplace due to menopause related treatment. She says: ‘It sits quite uncomfortably to say that the menopause or menopause symptoms amount to a disability, but that’s one of the major starting points from a legal perspective under the Equality Act 2010. So, we look at the definition of disability, which is defined as a mental or physical impairment that lasts or is likely to last 12 months or the rest of the person’s life and has a substantial or adverse impact on their ability to carry out their day-to -day activities.

‘If a woman decides to sue her employer and take the tribunal route she may need to go through a preliminary hearing stage in order to establish that what they are suffering from meets the definition of “disability” under the legislation. Recently it was held at a preliminary hearing it could absolutely be the case that symptoms such as brain fog, insomnia and anxiety, could amount to a disability, as defined.’

RELATED: Podcast: workplace menopause advice from lawyer Emma Hammond

How else can the law help you?

‘Within the Equality Act we’re also looking at age (which only works in some circumstances) and at gender. Would a man be treated the same in the same scenario? Obviously, a man can’t go through the menopause per se so we look at the difference in treatment. But again, you have to be pretty creative because there isn’t yet a protected characteristic for the menopause so we have to make these things fit to your circumstances,’ says Emma.

‘We also have to remember that discrimination rights under the age, sex and disability arena kick in from day one, and are even present from the recruitment stage. So you don’t need a specific length of service, whereas the right not to be unfairly dismissed starts after two years’ service. I support women by explaining that they do have some level of legal protection but this is so hard to see and act upon when they are being mistreated and feel lost and vulnerable. Also under health and safety legislation, the employer has a duty of care and must create and maintain a healthy and safe working environment.’

The rise in tribunals

You may have seen employment tribunals relating to menopause making the news. The most relevant recent case is that of Maria Rooney, a social worker who took Leicester City Council to court, claiming constructive unfair dismissal, when she was forced out of her job due to menopausal symptoms back in 2019. 

This case went to full hearing in October 2003. It has made legal history and is the first ruling at employment appeal tribunal level to establish whether menopausal symptoms can amount to a disability. The burden of proof to show, first of all, that Maria was suffering from a disability (as defined in the legislation) is a significant hurdle to clear. Whilst Maria succeeded with this, the stress, anxiety and cost would have put off 99% of people affected by these issues.

The first employment tribunal related to the menopause was heard in 2012 – Ms Merchant brought the claim against her employer BT on the grounds of sex discrimination. After experiencing menopause symptoms that were impacting her performance at work, she was placed on performance management process, and was then dismissed without her manager considering a letter from her GP. Ms Merchant was successful in her claim, but some employers are still taking a similar approach.

‘Sadly, some employers seem to lean towards starting a performance management process when they see symptoms, particularly those such as brain fog, insomnia and anxiety,’ says Emma. ‘Fatigue can clearly affect performance as concentration is often impacted. The ladies who come to me for support have a tangible fear of losing their jobs as they feel they are being managed out. I have had cases where the occupational health report specifically states says that the symptoms that are being suffered are linked to the menopause, so that if the woman is then being treated less favourably you’re immediately looking at a red flag of discrimination taking place.’

So, what can you do?

Start a conversation

‘There are good legal reasons to be open your employer – the employer, from a discrimination perspective, could say, “well we didn’t know and therefore what we’ve done does not amount to discrimination”,’ says Emma.

‘But starting a conversation also allows the employer to seek advice and understand your position. Many do want to help but are unsure how to do so.’

However, Emma recognises that it can be daunting starting this conversation. ‘If you don’t feel that you can speak to a manager, maybe seek out somebody who might be a female of a similar age or stage in your life within the workplace, who you feel you can trust so you can start to open up the conversation.’

Keep a symptom diary

Emma recommends you keep a diary of your symptoms and how they impact your performance or your working day: ‘Don’t expect the employer to second guess what you need. If you can show them what’s been happening, a dialogue can begin about where support might come from.’

Keep a record

Emma also suggests making a note of any difficult conversations or comments. This could be done by sending a note to your personal email, so that it is timed and dated, which may be helpful if you need to later share with HR (or perhaps eventually seek legal support).

‘It may not be a formal grievance that you need to raise and this is rarely palatable unless you feel nothing more can be done. It may actually just be, “look, these things are happening to me, they’ve happened now for a few weeks, they’re making me feel very uncomfortable. I think we could do with a training programme or education internally to address this, along with some personal support etc.

‘Sometimes this opens up a conversation about working patterns and things can progress positively from here. I often provide training programmes for employers who absolutely want to do the right thing,’ says Emma.

Check the paperwork

Check if your company has a menopause policy and, if so, make sure you as an employee are doing what it requires from your side too. Obviously, having a policy is the bare minimum, it should be embedded and lived and breathed.  

What should an employer do?

Employers have a duty to ensure the health and safety of all their workers, and to identify issues that impact them, which includes the menopause. Working in a safe, healthy environment includes having access to toilets, water and ventilation.

The British Standards Institute (BSI) launched new standards for menstruation and menopause in the workplace [3]. The guide provides examples of workplace adjustments that can be made to improve the wellbeing at work of menopausal women.

Employers can launch their own menopause policy. The most important part of any policy is encouraging open conversations, so that any employees who are struggling feel able to raise their issues. Education workshops and training can also help harbour a culture of openness.

Employers also need to be prepared to take action – when open conversations have taken place, the onus is on the employer to consider what reasonable adjustments and support can be offered to help the employee with their performance. The EHRC menopause in the workplace guidance for employers can be found here.

References

1. Labour Force Survey Q2, 2021

2. Faculty of Occupational Medicine, Guidance on menopause and the workplace

3. British Standards Institution (2023), Menstruation, menstrual health and menopause in the workplace