Some years ago we highlighted the case of Davies v Scottish Courts and Tribunal Service which considered whether menopausal symptoms could amount to a disability in law and trigger the duty on employers to make reasonable adjustments.
A recent decision - Daley v Optiva - demonstrates that many menopausal symptoms will satisfy the legal test of disability, namely, 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.
Mrs Daley is a 51 year old woman who had been experiencing menopausal symptoms for two years. These included:
- Hot flushes (which she found very embarrassing)
- Night sweats (which made her extremely tired during the day)
- Joint pain and muscle tension
- Tingling extremities – in her hands and feet.
- Itchy skin
- Fatigue and disrupted sleep
- Anxiety and panic attacks
- Memory lapses and difficulty concentrating
She alleged that her employers had discriminated against her on the grounds of her sex, age and because of her menopausal symptoms and another medical condition (an underactive thyroid). The tribunal heard evidence that Mrs Daley struggled to shop, drive, stay awake when watching films, was unable to socialise and to concentrate on documents and processes she was once familiar with. She mainly attributed these difficulties with her menopausal symptoms.
This was a preliminary hearing to determine if Mrs Daley was disabled. Very little information was provided about the nature of her claims (which, if they don't settle) will be heard separately.
The tribunal found that Mrs Daley was disabled both in respect of her menopausal symptoms and her underactive thyroid. It said that it wasn't necessary to pinpoint exactly where the impairment came from (menopause v's underactive thyroid) only that there is an impairment from a source.
There has been a steady increase in interest and openness around the subject of the menopause. Women are continuing to work into their fifties and beyond and employers are starting to recognise that they need to support them if they want to retain their skills and expertise.
In fact, around 50% of women going through the menopause experience symptoms that affect their working life. By 2022 around one in six will be women over 50 in the UK. And, the odds are you have someone in your organisation going through it now.
It's best to be prepared so that you can deal with any issues as they arise. We recommend:
1. Having a menopause policy in place (our IMhr plus clients can download our policy from our portal).
2. Consider having a menopause or wellbeing manager that staff can speak to to raise concerns and support them (rather than their manager).
3. Educate staff about the menopause and train managers so that they are comfortable discussing the menopause and its impact on individuals.
4. Provide information about where staff can obtain support and good advice.
5. Carefully manage sickness absence or a dip in job performance linked to menopause and consider what reasonable adjustments you can make to help the employee.
You can read our other tips here.
We can help
Our partner, Jenny Arrowsmith regularly helps organisations recognise and support menopausal women. Please get in touch if you'd like details of the training she can offer or need specific advice.