Menopause and the Law

A 2019 survey conducted by the Chartered Institute for Personnel and Development (CIPD) found that three in five menopausal women, usually aged between 45 and 55 years, were negatively affected at work, and that almost 900,000 women in the UK left their jobs over an undefined period of time because of menopausal symptoms. There are 4.5 million women aged 50–64 currently in employment.

The report found stigma, lack of support and discrimination were key factors in women leaving the workplace and that the current law does not serve or protect menopausal women. Employers’ lack of support for menopausal symptoms is pushing highly skilled and experienced women out of work, according to the cross-party Women and Equalities Committee. This could mean that women are leaving businesses at the peak of their experience which will impact productivity. Many women in this age group are likely to be eligible for senior management roles, and so their exit can lessen diversity at executive levels and it can also contribute to the gender pay gap and feed into a disparity in pensions.

UK employment court cases involving menopause are increasing, with more workers ready to challenge employers that are failing to recognise women’s health needs. Employment tribunals involving menopause increased by 44% in 2021, with 23 cases referencing it compared to 16 the previous year, according to analysis of court data. This included 16 tribunals claiming disability discrimination, 14 claiming unfair dismissal and 10 claiming sex discrimination. The word menopause itself was mentioned 207 times in tribunal documents in 2021, an increase of 75% from the 118 mentions the year before.

What is the Menopause?

Menopause marks the end of a woman’s reproductive cycle when the ovaries no longer produce eggs and she has had her last menstrual cycle. The diagnosis of menopause is not confirmed until a woman has not had her period for six to twelve consecutive months. The average age for women to reach the menopause in the UK is 51, but this can vary widely, as some women experience early menopause before the age of 40 years.

The menopause usually happens gradually. For a few years before the menopause a woman’s periods may become irregular, happening more or less often than they used to. This transition is known as the perimenopause, and women may notice signs of progression toward menopause, such as menstrual irregularity sometime in their 40s, but some women notice changes as early as their mid-30s.

The level of oestrogen, the main female hormone in a woman’s body, rises and falls unevenly during perimenopause. Their menstrual cycles may lengthen or shorten, and they may begin having menstrual cycles in which their ovaries don’t release an egg, known as ovulation. They may also experience menopause-like symptoms, such as hot flushes, sleep problems and vaginal dryness. Perimenopause can last for about four years, sometimes longer.

Throughout the perimenopause/menopausal transition, some subtle and some not so subtle changes may occur in a woman’s body.

These might include, but are not limited to:

• Irregular periods – as ovulation becomes more unpredictable, the length of time between periods may be longer or shorter, the flow may be light to heavy, and the woman may skip some periods. Anyone who has a persistent change of seven days or more in the length of their menstrual cycle may be in early perimenopause. If there is a space of 60 days or more between periods, this is likely to be late perimenopause.
• Hot flushes – these are common during perimenopause. The intensity, length and frequency vary. Sleep problems are often due to hot flushes or night sweats, but sometimes sleep becomes unpredictable even without them.
• Vaginal and bladder problems – when oestrogen levels fall, vaginal tissues may lose lubrication and elasticity, making intercourse painful. Low oestrogen may also leave a woman more vulnerable to urinary or vaginal infections. Loss of tissue tone may contribute to urinary incontinence.
• Reduced libido – the hormonal changes of the menopause can affect sex drive. Women may also have less interest in sex if they have vaginal symptoms that make them feel uncomfortable.
• Decreasing fertility – as ovulation becomes irregular, a woman’s ability to conceive decreases; however, as long as she is having periods, pregnancy is still possible. The use of birth control is advised for 12 months following the last period to avoid pregnancy.
• Loss of bone density – with lower oestrogen levels, a woman may start to lose bone density more quickly than she can replace it, increasing the risk of osteoporosis, a disease that causes brittle bones.
• Mood swings – such as irritability or increased risk of anxiety or depression may happen during perimenopause. The cause of these symptoms may be the hormonal changes of perimenopause and/or sleep disruption associated with hot flushes. Some women may also have difficulty concentrating and have a poor memory.

About 80% of women experience some symptoms of the menopause and one in four women have severe symptoms, including anxiety and depression, which can lead to them being diagnosed with mental health problems and being prescribed drugs.

What is the Law Around the Menopause?

Currently in the UK there is no legislation specifically relating to menopause, a fact not lost on the chair of the Women and Equalities Committee, who said, “Despite the fact that hundreds of thousands of women in the UK are currently going through the menopause – a process that can be both physically and mentally draining – it is ignored in legislation. It is time to uncover and address this huge issue, which has been left near-invisible for far too long.”

What is the Law Around the Menopause at Work?

As with other employment issues, a framework of legislative protection is an important backdrop that should act to ensure employers adopt best practices. The main employment laws protecting employees and covering a wide range of issues relating to the work environment and work processes include:

• Health and Safety at Work Act 1974 – provides for safe working conditions. This protection can extend to employees experiencing menopause whose health concerns are not being appropriately managed by their employer.
• Employment Rights Act 1996 – this is a comprehensive Act covering all employment rights including contracts, unfair dismissal, parental leave and redundancy; it does not, however, make any concessions for menopause leave.
• Employment Relations Act 1999 – this establishes a number of rights at work, for example trade union recognition, derecognition, industrial actions, the right for an employee to be accompanied in a disciplinary hearing and the right to maternity leave and time off for dependants. This Act also does not make any concessions for menopause leave.
• GDPR and Data Protection Act 2018 – this regulates how organisations store employee information.
• Equality Act 2010 – this Act prevents discrimination in the workplace and the recruitment process. It identifies protected characteristics that cannot be used as a reason for any workplace decisions, unless it is a decision to make suitable arrangements to accommodate them in the workplace.

However, menopause is not a protected characteristic in the Equality Act 2010. Under the Act, menopause discrimination is largely covered under three protected characteristics:

• Age.
• Sex.
• Disability.

Whilst the menopause can potentially be seen as a disability under section 6 of the Equality Act due to its long-term and detrimental impact on a person’s capacity to undertake day-to-day activities, the menopause has been challenged as a disability for statutory purposes at employment tribunal (ET). There has been case precedent at ETs Mahon v Rothwell (2019) and Evans LLP and Donnachie v Telent Technology Services Ltd (2020) which have stated that menopause can be considered as a disability, but only where the individual’s symptoms satisfy the fairly stringent legal test as to duration and gravity of adverse impact, which is likely to be in a significant minority of cases.

For a case of discrimination to be brought for menopause under age discrimination, this is always going to be difficult, as the menopause strikes at widely differing ages with widely differing impacts and so establishing any form of disparate impact by a meaningful age group can be problematic.

It is more likely that any employment tribunal claims will be made for sex discrimination. These claims are often specifically concerned with the unfair treatment of a person due to their gender and the health issues related to that gender. However, bringing the claim as gender discrimination can be difficult as currently the only legal protection for gender specific health issues is for pregnancy.

The CIPD report indicated that current laws are felt to be insufficient and that legislation should go further towards protecting menopausal employees against adverse treatment on those grounds. It is for these reasons that there have been numerous calls from MPs, trade unions and human resource bodies in the UK for an amendment to the Equality Act 2010 to provide greater clarity and protection in respect of menopause.

Is the Menopause a Protected Characteristic?

As stated above, menopause is not currently a protected characteristic under the Equality Act 2010; however, there have been a number of campaigns and proposals put forward to the Government to make amendments to the Act to include menopause as a protected characteristic.

The CIPD report cited above called on the Government to launch an immediate consultation on introducing menopause as a protected characteristic under the Equality Act 2010, launch a public health campaign on menopause symptoms, and pilot a “menopause leave” policy within the public sector. The Women and Equalities Committee Chair Caroline Nokes MP said: “The omission of menopause as a protected characteristic under the Equality Act is no longer tenable, given that 51% of the population will experience menopause.”

However, the Government’s response to calls for an amendment to the Equality Act 2010 dismissed the need for an amendment to incorporate a menopause protected characteristic stating: “Menopause is not a protected characteristic in the Equality Act 2010 (the Act), but sex, age and disability are all characteristics which provide protection against unfair treatment of employees going through the menopause. As such, the Government does not believe further changes to the Equality Act are needed.”

Should All Workplaces Legally Have a Menopause Policy in Place?

There is currently no specific legislation that requires employers to have a menopause workplace policy or to protect workers experiencing menopausal symptoms. However, in light of the recent statistics cited above regarding tribunal claims referencing menopause, and the fact that menopause is likely to affect a significant portion of an organisation’s employees, it would be seen to be good business practice for all organisations to create a menopause policy.

Developing and implementing a menopause policy can reassure employees that there is support available by providing an overview of reasonable workplace adjustments that could be made. A policy will also encourage open communication between employees and managers. It is important that women experiencing the menopause know where and who to go to for help and support in the workplace and also feel confident to raise issues in the workplace.

By having a clear menopause policy and procedures to follow, not only is it likely to reduce risks of grievances and discrimination claims, but it is also likely to improve the working environment and enhance employee retention and productivity when issues caused by menopause are properly addressed.

As well as creating a menopause policy, employers should menopause impact assess all other workplace and HR policies to ensure that they do not unfairly impact menopausal employees.

Should a Risk Assessment be Carried Out with the Menopause?

Employers are responsible for the health and safety of all their employees under the Health and Safety at Work Act 1974. Employers must carry out regular risk assessments to ensure that their employees’ working environments remain safe and healthy. Employers are required to carry out risk assessments under the Management of Health and Safety at Work Regulations 1999 (Great Britain) and The Management of Health and Safety at Work Regulations (Northern Ireland) 2000, NI Regulation 3(1), which should include any specific risks to menopausal women.

The law states that those carrying out risk assessments must have had “sufficient training and experience or knowledge and other qualities”. So, it is imperative that risk assessors have undertaken menopause awareness training in order to recognise any risks to health for this specific group of people. Risk assessments should consider the specific needs of menopausal women and ensure that the working environment will not make their symptoms worse.

Issues that need consideration include, but are not limited to:

• Temperature.
• Ventilation.
• Toilet facilities.
• Access to cold water.

It is important that workplace stress is also considered and addressed properly using the Health and Safety Executive (HSE) stress management standards.

Some of the workplace issues that employers should consider and address for menopausal women include:

• Women experiencing daytime sweats, hot flushes, facial redness and palpitations – this may cause women to feel self-conscious, or the sensation may affect their concentration or train of thought. Employers should consider being flexible about additional breaks, allowing time out and access to fresh air, having a quiet space available, providing cover if required so that employees can leave their posts when they need to. Unsuitable uniforms may also cause discomfort and some uniform material may add to body temperature, so employers could consider some flexibility.
• Women experiencing night-time sweats, hot flushes and insomnia or sleep disturbance – these women may benefit from a temporary adjustment of their working hours to accommodate any difficulties, or flexible working. It can help to provide flexibility in tasks/duties allowing adjustments to workload or performance management targets. Some women who need to take additional sick absence should be reassured that they will not be penalised or suffer detriment.
• Women experiencing irregular and/or heavy periods, or urinary problems; for example, increased frequency, urgency, and increased risk of urinary infections – women should have easy access to well-maintained toilet and washroom or shower facilities with readily available sanitary products. They will also require allowances for more frequent breaks in work to go to the toilet/washroom and cover should be provided if needed so women can leave their posts. Women in peripatetic roles may require more flexibility in their schedules to allow them to access facilities during their working day. Some women may need to drink more fluids, so ensure easy access to a supply of cold drinking water. Some women may feel unwell, so be aware of a potential additional need for sick absence and reassure women that they will not be penalised or suffer detriment if they need to take sick absence.
• Women experiencing skin irritation, dryness or itching may be exacerbated by working conditions and temperatures, so employers should monitor working temperatures and humidity to ensure that they are comfortable.
• Women experiencing muscular aches and bone and joint pains may find that work involving repetitive movements, adopting static postures, or lifting and moving objects is more uncomfortable and there may be an increased risk of injury. Employers should make any necessary adjustments through the review of risk assessments and work schedules/tasks and keep these under review.
• Women experiencing dry eyes and/or headaches may find that these are aggravated by, for example, workplace temperatures/humidity, poor air quality, exposure to chemicals, artificial lighting, and excessive screen work. Employers should update Display Screen Equipment (DSE) and stress risk assessments when there is a change in circumstances and permit additional rest breaks.

There will be some women who may suffer from psychological symptoms during the menopause, such as:

• Depression.
• Anxiety.
• Stress.
• Panic attacks.
• Mood changes.
• Loss of confidence.
• Memory problems (brain fog).
• Difficulty concentrating.

These symptoms of menopause can have wide-ranging negative effects on mental and physical health and wellbeing, and also work performance and workplace relationships may be affected. For some women, certain tasks may become more difficult to carry out temporarily, which may be compounded by lack of sleep and fatigue, their performance may be affected and they may begin to suffer work-related stress as a consequence.

Negative attitudes of managers and work colleagues who may not fully understand what it means to be menopausal or who may harass by making inappropriate comments and jokes about the menopause or age, will also have damaging effects. Employers should ensure that managers understand the menopause and are prepared to discuss any concerns that employees may have in a supportive manner, including offering adjustments to workload and tasks if needed, providing additional time to complete tasks if needed, or considering substituting with alternative tasks. Employees should also raise a general awareness of issues around the menopause so that all colleagues are more likely to be supportive.

It is important to remember, however, that some women experiencing the menopause may not want to openly discuss their issues or to publicly highlight the fact within the workplace. All employees have a right to their privacy, particularly around personal issues. The most important thing is that employers communicate to all employees, ideally through a menopause policy, that support in the workplace is available and that any disclosures will be treated confidentially.

Employers’ Responsibilities Around the Menopause at Work

Employers are responsible for the wellbeing of all employees and should be prepared to make reasonable adjustments as they have an important role to play in ensuring that anyone experiencing menopausal symptoms gets the same support and understanding as if they had any other health issue.

Unlike pregnancy or maternity, the menopause is not well understood or provided for in workplace cultures, policies and training. Employers should ensure that all managers recognise the menopause as both a health and safety issue and an equality issue. Good people management is fundamental to supporting employee health and wellbeing, spotting early signs of ill health or distress, and initiating early intervention.

Menopause can affect people’s confidence and it can be very daunting talking to someone who has no knowledge/awareness of the menopause. By educating the workplace through training sessions and awareness information, employees will understand the symptoms and effects of menopause. This will enable managers to deal with menopause issues sensitively and fairly. In turn, employees may gain more confidence to talk to their managers about these issues. It can also be helpful for employees experiencing the menopause to have access to Employee Assistance Packages (EAP) or Occupational Health advisers.

Employers have a responsibility to ensure that any policies, procedures and training are implemented fully by all staff, and are not merely cosmetic and appear as just a token gesture or a tick-box exercise, as this will affect employees’ confidence in their employer.

Employees’ Responsibilities Around the Menopause at Work

All employees need to feel comfortable and informed to have conversations about the menopause. If someone tells a colleague about their health condition, including menopausal symptoms, this should be treated as confidential. If they want information about their condition to be shared, consent must be explicit.

Employees have a responsibility to abide by the rules and regulations that their organisation has put in place, which should include displaying respectful, non-discriminatory behaviours in the workplace. Where an organisation has specific policies such as Equality, Anti-bullying, Health and Safety and, hopefully, Menopause, employees have a responsibility to cooperate and comply with these.

Final thoughts

World Menopause Day 2022 is on 18^th October with a theme of “Menopause: Continuing the conversation”. It is a great opportunity for employers and employees to gain access to additional guidance and advice, and to have open conversations about menopause in the workplace. The initiative is coordinated by the British Menopause Society, the specialist authority for menopause and post-reproductive health in the UK.