During a debate at the House of Commons, Minister for Women, Victoria Atkins reported the importance of providing support for women going through menopause. A recent survey published that 31% of women experience reproductive health problems.
What does the law say?
The case law on menopause in the UK is focussed on sex discrimination and disability discrimination.
- Sex discrimination. An employee was dismissed following a final warning for poor performance. She had previously given her manager a letter from her doctor explaining that she was “going through the menopause which can affect her level of concentration at times”. The manager chose not to carry out any further investigations of her symptoms, in breach of its performance management policy. The tribunal upheld her claims of direct sex discrimination and unfair dismissal and held that the manager would never have adopted “this bizarre and irrational approach with other non-female-related conditions”. The manager also wrongly decided that his wife’s experience was apparently relevant evidence for his employees.
- Disability discrimination.The employee was found to have been unfairly dismissed and reinstated to her role with back pay and injury to feelings compensation. The judge found that she had been dismissed “because of something arising in consequence of her disability”. She suffered from transition symptoms which included heavy bleeding (requiring her at times to work near a bathroom as she needed to change her sanitary towel every 30 minutes) as well as stress, memory loss and other symptoms. Her employer managed the requisite reasonable adjustments well. However, she could not recall if her tablets had been placed in a jug and there was a risk that two male colleagues had drunk from that jug. She was accused of lying, bringing the company into disrepute and she was dismissed. It was decided that her employer had failed to protect her when, during the course of its investigating and in making the decision to dismiss, it did not consider that her “conduct was affected by her disability”. Her memory loss and confusion were in fact caused by her disability (which was in turn the result of her transition).
Possible future claims
In addition to the above claims, the other types of claims that could arise as a result of treatment of a woman in transition include:
- Indirect sex and disability discrimination if, for example, a uniform policy is inconsistent with the need for cooling clothes or hiding sweat patches.
- Sex, disability and age-related harassment if she is subjected to unwanted conduct which violates her dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for her.
- Failure to make reasonable adjustments to the workplace (if her conditions amount to a disability). Steps that an employer might consider include flexible working, later starts to manage insomnia, access to cold water and ventilation and managing symptoms such as memory loss.
What can employers do?
- Educate staff about the menopause.
- Apply a fair sickness absence policy which accommodates women experiencing transition.
- Improve the working environment including access to fans, good ventilation, the ability to control temperature, having clean and comfortable toilet facilities near work stations with appropriate sanitary disposal bins and feminine hygiene products and also have access to female-only showers if possible.
