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Can menopausal women bring discrimination claims?

By Joanne Moseley

With 3.5 million working women aged 50 and over in the UK, odds are, you have someone in your organisation going through it.

Women have started to ask their employers to adjust their working patterns, targets and even absence policies so that they can continue to work during their menopause. Do employers have to do so?

Employers only have to make reasonable adjustments for staff who are “disabled” as defined in the Equality Act 2010. A disabled person is someone with a mental or physical condition, which has a substantial and long-term effect on their ability to carry out normal “day to day” activities. Day to day tasks are not limited to workplace tasks and can include an inability to sleep or concentrate. Substantial is something that is more than trivial and, long term means that it has, or is likely to, affect an individual for over 12 months.

Symptoms

The menopause is the medical term for the natural change in women’s bodies where they stop having periods. This process can take years and is often preceded by the peri-menopause. Menopausal symptoms and their severity vary from woman to woman but, typically, they include; hot flashes, chills, night sweats, sleep problems, lack of concentration, mood changes and depression.

So, whilst the menopause itself will not amount to a disability, the physiological and physical consequences of going through it can do.

For example, in Davies v Scottish Courts and Tribunal Service the Employment Tribunal found that Ms Davies’s menopausal symptoms did amount to a disability. She suffered from heavy bleeding that left her seriously anaemic and caused dizziness and poor concentration.

Read more about Mrs Davies’s case here.

Reasonable adjustments

If the symptoms affect a woman’s ability to undertake normal day to day activities, then you must make any reasonable adjustments that will enable her to return or to stay in work.

The requirement to make reasonable adjustments applies where a “provision, criterion or practice” (such as a workplace policy) or physical feature (such as working in a hot environment) puts a disabled person at a substantial disadvantage. You must ignore the effects of any aid the person uses to determine this – such as taking HRT.

What reasonable adjustments could you take to help a menopausal woman?

The EHRC Employment Statutory Code of Practice contains a non-exhaustive list of potential adjustments that employers might be required to make. Most relevant to menopausal women are allocating some of their duties to another person, allowing them to work flexibly or from home. But it may also be reasonable to adjust performance targets or the triggers in an absence policy before taking any disciplinary action if the reason you are considering doing so relates to their condition.

What happens if you don’t know your employee is menopausal?

Generally, you will only be liable for disability discrimination if you actually know your employee is disabled or could reasonably have been expected to know this. But that doesn’t mean you can bury your head in the sand and claim ignorance.

For example, you notice that Joan has started to turn up late for work because she is having trouble sleeping. Joan is in her fifties and it is possible that this is a symptom of menopause as women generally start the menopause anytime from their late forties. The point is you won’t know unless you ask her. Sleep is a normal “day to day” activity. Therefore, if Joan is not sleeping well because she has night sweats this will amount to a disability if these symptoms are likely to last 12 months or more (or have already done so). Menopausal symptoms can extend over a long time and you may have to seek medical advice if you are not sure.

You will need to be tactful and sensitive. Don’t make assumptions about the menopause or try to relate it to your own experience or that of someone you know. All women are different and their symptoms will be different. If you get this wrong, your employee may also allege sex discrimination.

Is there any help available to assist managers?

Yes. The Faculty of Occupational Medicine, a charity committed to improving health at work has produced guidelines for employers based on those produced by the European Menopause and Andropause Society. These recommend; introducing training to increase awareness of the potential effects of menopause in the workplace, adapting the workplace environment where appropriate (for example changing temperature of rooms and having fans available), making flexible hours for some women an option and creating opportunities to facilitate discussion about symptoms that are impacting on the ability to work.

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