Demographic shifts in the UK workforce mean that there are now more women in work and, of these, more employed at senior levels. It is therefore important that employers are aware of the relevant issues and take action to support these employees. Failure to do so could not only result in legal liability but the loss of valuable talent from the workforce at a time of ongoing skills shortages.

1. What is the menopause and who experiences it?

The NHS defines menopause as occurring when periods have stopped for more than 12 months due to lower hormone levels. This usually takes place when individuals are between the ages of 45 and 55 but some will experience the menopause, and associated symptoms, earlier than this.

During the menopause and in the run up to it (perimenopause) people can experience a range of both physical and mental health symptoms including hot flushes, dizziness, difficulty sleeping, headaches, low mood and problems with memory and concentration. Whilst the symptoms and their severity vary from person to person, they can have a significant impact on someone’s work and personal life.

It is important to remember that anyone with a menstrual cycle may experience menopause. Therefore, people who do not identify as women can also be affected. The Acas guide provides further information in relation to this.

2. Can the menopause form the basis of an Employment Tribunal claim?

Yes, the menopause can form the basis of an Employment Tribunal claim, and we have seen a number of cases being picked up by the mainstream media in recent months.

Whilst “menopause” is not a protected characteristic itself, this doesn’t mean that employees cannot bring a discrimination claim. Sex and age discrimination are obvious potential risks when it comes to employees that are experiencing the menopause. Moreover, depending on the severity of the symptoms, employees could argue that they are in fact disabled and therefore have been subject to disability discrimination (see question 3 below).

While we are not aware of any existing claims, it may also be possible for someone who is considering, is undergoing, or has undergone, gender reassignment to bring a menopause-related claim for gender reassignment discrimination (e.g. where the individual with the protected characteristic of gender reassignment is experiencing menopause symptoms and is treated less favourably than a woman experiencing menopause symptoms).

Issues can arise where, for example, the employee is dismissed for misconduct but claims their dismissal is unfair as their employer failed to consider menopause symptoms which caused/contributed to this.

We have written about the potential for menopause-related Employment Tribunal claims in more detail here.

3. When is the menopause a disability for employment law purposes?

Employment Tribunals have accepted that it is possible for menopause to amount to a disability under the Equality Act 2010. Earlier this year, the Tribunal in Lynskey v Direct Line Insurance Services Ltd ordered the employer to pay an ex-employee £64,645 after it was found to have failed to make reasonable adjustments for her menopause symptoms which amounted to a disability.

Whether the employee is disabled needs to be assessed on a case-by-case basis and will always depend on the individual’s particular circumstances. In order to meet the statutory definition of ‘disability’ the impairment in question must have a substantial and adverse effect on someone’s ability to carry out normal day to day activities and last, or be expected to last, for at least 12 months.

It is therefore important that employers treat the menopause as a medical condition and are aware that in severe cases it can amount to a disability, meaning that the employee could bring claims such as discrimination arising from disability or a failure to make reasonable adjustments. We have written in more detail about disability discrimination and the menopause here.

4. How can employers support employees experiencing the menopause?

Sometimes employees can find it difficult to talk about the menopause, and issues they might be experiencing, with their manager and/or colleagues. There are steps that employers can take to encourage openness around menopause which, in turn, allow employees that might be facing challenges to share their experiences and request any support they might need. This could include:

• training managers on how to discuss issues relating to the menopause and support individuals sensitively and appropriately;
• promoting apps such as ‘balance’ which provide menopause health and wellbeing support to employees;
• introducing a policy which brings attention to the effects of the menopause and normalises discussions around it within the workplace; and
• hosting “safe space” conversations.

In addition to this, employers can also provide menopause-specific benefits such as extending medical insurance (where applicable) to cover access to clinical support. Some employers have introduced free menopause testing and access to a menopause assessment and diagnosis service, with a number allowing their employees to expense hormone replacement therapy prescriptions. Other initiatives being offered by employers include:

• free menopause support lines;
• working environment assessments;
• access to virtual seminars;
• ‘menopause friendly’ uniforms made from more lightweight breathable fabric; and
• the provision of ‘cool rooms’, which are quiet, cool and private spaces that can be used by employees experiencing symptoms.

Employers can also consider signing up to targeted initiatives such as Wellbeing of Women’s Menopause Workplace Pledge (which has more than 2,500 employers signed up so far) and/or appointing a ‘menopause champion’ – someone to act as an approachable point of contact should staff need advice or support and not wish to speak to their manager in the first instance. They may also find it useful to refer to the British Standards Institution’s guidance for employers on menstruation, menstrual health and menopause in the workplace which was published earlier this year.

As well as taking voluntary steps to support affected employees, employers should always ensure that they are meeting their legal obligations; for example, their duties under health and safety law (see question 8 below) and the obligation to make reasonable adjustments if the employee is disabled.

5. What should employers consider when drafting a menopause policy?

It is currently not a legal requirement for employers to have a menopause policy. However, as mentioned above, this can be a helpful way to support employees by normalising conversations around the menopause and sharing information about the support available.

When writing a policy, some of the key things that employers should consider are as follows:

6. How should employers deal with menopause-related absences?

Employers should, of course, deal with menopause-related absences sensitively. They should also be mindful of avoiding legal risks.

To mitigate the risk of a disability discrimination claim, employers should consider recording absences due to the menopause separately from general sickness absences and adjusting their policies accordingly, particularly if certain levels of absence will activate a disciplinary or warning procedure.

Employers should also consider whether they should be making any adjustments to support the affected employee and, in turn, reduce menopause-related absence. Depending on the circumstances it can be helpful to obtain advice from the employee’s GP or an occupational health provider (subject to the relevant legal requirements).

7. What action is the government likely to take in this area?

The current government is not expected to take any imminent action in this area, although pressure continues to grow. It has confirmed that it does not intend to add the menopause as a protected characteristic or implement provisions relating to combined discrimination.

The Labour Party has indicated that, if it wins power at the next general election, it will introduce various menopause-related initiatives. This is currently expected to include requiring larger companies to implement and publish a “menopause action plan” as well as introducing menopause guidance specifically aimed at small businesses.

8. What are employers’ health and safety obligations in relation to the menopause?

It is important that employers understand their health and safety obligations as these apply even when menopause does not constitute a disability.

Employers should ensure that risk assessments consider the needs of menopausal workers, and that the working environment does not make their symptoms worse. Each workplace is different so employers must ensure that any assessments they put in place are appropriately tailored. We have written further about the relevant health and safety legislation here.

9. What information and guidance is available to employers?

The following sources provide some helpful guidance:

• ACAS: Guidance to supporting staff through the menopause
• CIPD: A guide for people professionals
• British Menopause Society: Menopause and the workplace guidance

This article is the third in our series of articles focusing on older workers. You can read the first article on how employers can make their workplaces appeal to older workers here and the second on ill health in the context of an ageing workforce here.