In recent years we have witnessed increased media attention on the topic of menopause, raising public awareness on it as a workplace issue. Historically there has been a stigma around menopause so whilst shining a spotlight on it as a workplace issue can be beneficial from a business perspective, the unwelcome, but perhaps unsurprising, knock-on effect of this increased attention is a rise in Employment Tribunal claims citing menopause.
A difficulty that employers encounter is that menopausal symptoms are not always obvious or it's not immediately apparent how they affect employees at work. A CIPD report found that 30% of menopausal employees have taken sick leave because of their symptoms, however only a quarter of these employees disclosed to their employer that their sickness was related to menopause, citing embarrassment and unsupportive managers as reasons for keeping it secret. This meant that only 12% sought workplace adjustments.
Recent case law decisions have shown that menopausal symptoms can amount to a disability. Employers have various legal obligations to disabled employees, including sometimes in circumstances where a disabled employee has not outright disclosed their condition. It is therefore clear that the reluctance of menopausal employees to disclose their symptoms and how they are impacted at work poses issues for employers. It invites the question as to how employers should encourage employees to open-up about their menopause and more generally, what steps employers can take to identify if employees are being affected at work by their menopausal symptoms.
The obvious first step for employers to take is to make adjustments for those employees who have willingly disclosed that they are menopausal, ensuring that they are supported. A Tribunal will not look favourably upon an employer who has actual knowledge of an employee's condition but fails to take action, or actively takes steps which worsen the employee's symptoms. A recent case decided in the Scottish Employment Tribunals serves as a good example of this.
Shearer v South Lanarkshire Council
Mrs Shearer, an English teacher, was informed that she must transfer to another school that supported pupils with significant behavioural difficulties. It was widely known that the pupils at this school were likely to exhibit distressed behaviours through violence and that the police were regularly called to the school as a result.
Mrs Shearer was taking prescribed medication at the time for menopausal symptoms which included high blood pressure, anxiety and low mood. Given the school's reputation, Mrs Shearer was deeply concerned about the proposed transfer and the impact it would likely have on her health. Over the following weeks her menopausal symptoms worsened due to an increase in stress regarding the proposed transfer. Mrs Shearer contacted her school's management to express her objections to the transfer, setting out her medical history and her desire to discuss other employment options. HR held a meeting with Mrs Shearer during which she explained the full extent of her menopause symptoms and how they were worsening, however her alternative employment proposals were rejected and she was told that she would still be transferring.
Mrs Shearer was signed off as sick with "work related stress and anxiety", which she blamed on the transfer. Following two assessments by occupational health, it was advised that she should remain in her current position due to the potential impact that the transfer could have on her mental health and that it could exacerbate her menopausal symptoms.
The school implemented a capability procedure and Mrs Shearer was ultimately dismissed. She brought claims in the Tribunal of unfair dismissal, disability discrimination in relation to the school's failure to make reasonable adjustments and discrimination arising from a disability, that being her menopausal symptoms.
Tribunal's decision
All three of Mrs Shearer's claims were successful. The Tribunal found that it would have been reasonable for the school to allow Mrs Shearer to continue working in her current position because her aggravated symptoms and sickness absence were inextricably linked to the instruction that she should transfer schools, noting that both occupational health therapists had made this link too. The Tribunal found that no reasonable employer would insist that Mrs Shearer be made to transfer knowing the effect that its proposal was having on her health.
Mrs Shearer was awarded £61,074.55 in damages, which included compensation for loss of earnings, future loss of earnings and injury to feelings.
Knowledge of disability and steps to take
What is perhaps most striking about this case is that the employer was well informed of the employee's medical history and symptoms. Mrs Shearer had raised her health concerns repeatedly to various persons in leadership, including a meeting with HR to specifically discuss her symptoms and medical history. However, in this case the employer did not seriously consider the employee's menopausal symptoms or any adjustments, which proved to be a costly error.
The less obvious steps to take are where an employee's menopausal symptoms are unknown to the employer. In those circumstances, employers should have an open conversation with all workers (not just those in management positions) to help initiate dialogue on the topic. For example, employers could create a network or steering group that focuses specifically on menopause in the workplace and what adjustments can be made, which can then be relayed to HR and those in leadership positions to implement the recommendations agreed by the network. Sally Bird previously looked at reasonable adjustments relating to the menopause here.
In addition to suggesting workplace adjustments, a network or steering group can provide opportunities for employees to discuss their experiences of menopause in a safe and understanding environment. This could in turn give confidence to employees that they can approach those in management and disclose how they are being affected by menopause without being treated less fairly.
In addition to encouraging dialogue from employees, there are business practices that can be used to help identify issues. Employers should roll-out training to all staff and especially those in management positions, focusing directly on how to identify if employees are suffering from menopausal symptoms, how to sensitively address this and then what measures should be taken in response. It is important that those in management positions are confident that they can determine when to speak to employees and how to go about doing this, for example adopting the most appropriate tone. It is a good idea to have in place a workplace policy dealing with menopause, for example a specific menopause policy or a section contained within an existing equalities and diversity policy, which sets out guidance to employees on who to speak to about their menopause if needed.
Finally, it should be regularly communicated to all staff that support is available, for example through any Employee Assistance Programmes that are in place, or through confidential one-to-one meetings with either their line managers or HR.
Awareness of menopause as a workplace and legal issue is growing. Employers must be prepared and do their best to assist employees. Please contact Jake McManus if you have any questions in respect of the issues covered in this article, or if you would like to discuss what training or employment support Kuits can provide. You can contact our Employment team on 0161 832 3434.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.