With more women working to later in life than the past, the potential issues affecting women at work who are dealing with the menopause needs to be addressed. Not only do employers have legal obligations that may arise, it is clearly in the interests of business to retain the talent and experience of these working women.
Research commissioned by ‘Health and Her’ indicates that time taken off work because of menopausal symptoms causes a productivity loss of 14 million working days annually. The Office for National Statistics demonstrate that the biggest increase in employment rates over the last 30 years have been for women aged 60 – 64 (from 18% to 41%) and for women aged 55-59 (from 49% to 69%). This increased rate of employment among women aged 50 and above means that more working women than ever before will experience the menopause. These statistics demonstrate the importance to employers of supporting women through the menopause.
The research concluded that almost a third of working women aged 50 to 64 are taking time off work to relieve menopausal symptoms and over half are then working in their own time in order to make up time. Additionally, over 370,000 women admitted that they had either left or considered leaving their career because of the difficulties of going through the menopause in the workplace which is significant and unnecessary loss of talent.
Whilst the case law on menopause related claims is currently limited, employers have a duty to protect the health and safety of their workers, and not to discriminate on grounds of sex or disability. We take a look at what we can learn from the cases to date.
In Merchant v BT plc, Ms Merchant 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”. In dismissing her, the manager chose not to carry out any further medical investigations of her symptoms, in breach of BTs 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 was also wrong to consider that his wife’s experience was relevant evidence.
In Davies v Scottish Courts and Tribunals Service, Ms Davies suffered from menopause transition symptoms which included, amongst other things, heavy bleeding as well as stress and memory loss. Her employer considered that she had lied and brought the court services into disrepute when she advised two colleagues in court that they may have drunk water containing her medication.
Ms Davies was dismissed and successfully claimed unfair dismissal and discrimination arising from disability. The Tribunal held that her dismissal was because of her conduct arising from her disability (as her peri menopausal condition caused her to be forgetful and confused about whether she had taken her medication and put it in the water). Her employer was unable to justify the treatment as being a proportionate means of achieving a legitimate aim (having honest and trustworthy staff). The Courts and Tribunal Service has appealed this decision to the EAT, so further guidance may be forthcoming from the EAT.
It is likely that more claims will arise as the number of women over 50 in the workplace also rises. The key for employers is education to normalise the issues and effect of the menopause and to embrace debate. This will benefit employees and employers alike.