Jul 2015
Author: Nicola O'Dwyer
The menopause may be a taboo subject at work but employers who ignore it are potentially at risk of employment claims. A recent government commissioned report indicated that employers should consider the impact that the menopause may have on their female employees and how they can address any issues they may experience.
Many women report that the various symptoms of the menopause interfere with their ability to work and some have reported that they are viewed as less competent due to the complications they are experiencing associated with the menopause. The effects of the menopause can last for up to 14 years for some women but on average it will take seven and a half years for a female’s body to fully adjust not just physically but emotionally as well.
Below are some of the issues that women face and how employers can assist their employees whilst they are in the workplace:
Hot Flushes
These are the most common and well known symptoms of the menopause.
An employer needs to consider the temperature within the workplace such as ventilation and temperature control. The temperature may be set too hot for a woman suffering from regular hot flushes. Warm weather can also intensify hot flushes so good ventilation should be provided when there is a spell of exceptionally warm weather. If your employees wear protective clothing or a uniform, remember this can exacerbate hot flushes and you may wish to consider how you could change uniforms to help employees with this problem.
Breaks
Many women suffer from dizziness, fatigue and an increased need to use the toilet. Employers should make sure employees have adequate access to toilet facilities and also allow the employees to take regular breaks. It may also be necessary for a female employee to be allowed to leave early as they may suddenly feel unwell.
Mental Health Issues
Many women have increased levels of stress during the menopause due to the changes that are occurring with their body and the fact their fertility levels are dropping off. The stress levels may be higher than usual during this period and being at work can intensify these feelings. Heavy workloads, inflexible hours, negative or inappropriate comments and a general lack of understanding from colleagues and managers can have a huge impact on a woman’s confidence at work during this period.
An employee may also suffer from exhaustion, depression and anxiety attacks due to the change in their hormone levels and this may affect their ability to concentrate and attend work.
Hormone Replacement Therapy/ Natural Replacement Therapy
Many women take either hormone or natural replacement therapy for their symptoms. Unfortunately, this may not eradicate all of the above symptoms and can cause side effects, which may include nausea, depression, irritability, indigestion and headaches which may also affect their ability to attend work.
WHAT THE EMPLOYER CAN DO
Whilst there is no specific legislation which addresses the impact of the menopause in the workplace, there are regulations that require employers to protect the health, safety and welfare of all employees and this includes women who are experiencing the menopause.
Communication, support and sensitivity with the employee is key and should assist with overcoming barriers to gain a better understanding of the menopause and how it affects the individual. Managers should be made aware of the effect that the menopause can have on female employees and that the employee may be affected for a number of years. Women should not be made to feel embarrassed if they raise that they are having problems due to the menopause and should be supported rather than ignored. You may also wish to reference the menopause and its potential effects within your staff handbook.
You may also wish to consider allowing the employee to work from home if the employee is finding attending the workplace difficult due to the symptoms she is suffering.
It is also important that any sickness absences which are related to the menopause are recorded as an ongoing issue rather than a number of short term absences which may cause the sickness absence procedure to be implemented.
If you do not support employees who are suffering from the menopause appropriately there is the risk that they can bring a claim for sex discrimination under the Equality Act 2010.
In the case of Merchant v BT plc, the Employee, Ms Merchant, alleged that she had been discriminated against on the grounds of her gender when her Employer failed to deal with her menopause symptoms in the same way that it would have dealt with other medical conditions.
Ms Merchant was underperforming in her role. She had been subject to the capability or performance management process a number of times, and was up to a final written warning. The issues with her performance were continuing, and her employers were now deciding whether to offer her alternative employment or dismiss. Ms Merchant provided her employers with a letter from her GP during discussions, which stated that she was going through the menopause and that this “can affect her level of concentration at times” and also that she was suffering stress due to being a carer for two members of her family.
The employer’s performance management process stated that there must be an investigation into whether the underperformance of an employee was due to health factors. Despite this, the manager conducting the process decided not to investigate the possible impact of Ms Merchant’s menopause, and in particular he relied upon his knowledge of the menopause from the symptoms his wife and a colleague had experienced. He dismissed Ms Merchant, who then brought claims for unfair dismissal and direct sex discrimination. Under the Equality Act 2010, direct sex discrimination occurs where, because of sex, A (in this case the employer) treats B (the employee) less favourably than A treats or would treat others.
The Tribunal upheld Ms Merchant’s claims and found that the manager would never have adopted “this bizarre and irrational approach” in a case involving a man. This was considered of particular significance, because women experience menopause in different ways and with varying severity of symptoms. The failure to refer Ms Merchant for an occupational health assessment following the letter from the GP, before taking the decision to dismiss, was held to be direct sex discrimination. The Tribunal found that a man suffering from ill-health with comparable symptoms from a medical condition (in this case, affecting concentration) and with performance issues, would not have been treated in the same way. This was also directly against the employer’s own policy.
Case law has repeatedly shown that employers should take medical information into account in capability situations where ill-health has been raised by the employee. This will usually involve the employer seeking advice from the employee’s GP and/or an occupational health practitioner. While this case was at Employment Tribunal level only, and therefore not binding law, it is still a useful reminder to employers of the importance of following a fair process.
If you have a query about this or any other employment related issues please do not hesitate to contact Nicola O’Dwyer on 01483 411516 or email [email protected]
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