According to research reviewed by the Guardian newspaper there's been a significant increase in the numbers of women bringing employment claims linked to the menopause. The figures are stark. In 2019, only six cases referenced the claimant's menopause. By 2020 that had increased by 167% to 16. Whilst those numbers are still relatively small, they do suggest that women are becoming more willing to raise issues with their employers and bring claims if they are not resolved.
Here's a roundup of some of the judgments published this year where menopause has been a factor.
Burchall v Project One Consulting Ltd
Ms Burchall was a consultant earning around £120,000 per year plus bonuses. Her job was demanding and often involved long hours and travelling. Before she started work, she informed her employer (via completing a health questionnaire) that she experienced regular menopausal symptoms but hadn't taken any time off to manage these. The only other time she appears to have mentioned this issue was in response to a general email from HR about improvements to the business's private medical cover. Ms Burchall said that she was 'relieved' that she would be able to access support for 'matters gynaecological and menopausal'. She did not, however, mention that her menopause was causing her any particular problems.
Her employers were concerned about her work and attitude and dismissed her. She alleged that she had been directly discriminated because of her sex. She argued (amongst other things) that her employer knew that she was menopausal and had failed to take that into consideration when reviewing her performance.
The tribunal rejected this because there was no evidence that Ms Burchall's performance might have been adversely impacted by her menopause. She had never told them that it was causing her any difficulty with work and she never requested any support or time-off. It therefore did not affect their decision making.
Sloan v Dumfries and Galloway Health Board
Mrs Sloan worked as secretary in the hospital. Following a reorganisation, she was moved into a new building which was open plan. Mrs Sloan complained about the air quality which she believed was causing her to have headaches. She was referred to OH but didn't follow their advice.
She resigned and claimed constructive unfair dismissal and age and sex discrimination. In relation to her discrimination claims she argued that she and colleagues were required to work in an environment where the air quality and temperature was below the required standard and that this amounted to a provision, criteria or practice (PCP). She argued that this placed women and those aged between 50 and 65 at a significant disadvantage compared with male colleagues and female colleagues outside of that age range. She selected that particular age to reflect the average age at which women usually go through the menopause.
The tribunal rejected her claims. It found that Mrs Sloan hadn't provided any evidence to establish the PCP she relied on and that the the air quality and temperature met reasonable standards. It then went on to say that even if she'd cleared the hurdle of establishing a PCP, she'd failed to present any evidence to suggest that her work environment put women at a particular disadvantage compared to men.
'While there was evidence showing women going through the menopause could be susceptible to changes in temperature, there was no evidence showing men had no issues as they got older or that the women in general were more likely to be placed at a disadvantage. In other words no evidence had been led by the claimant to suggest that women are more sensitive to cold or to substandard air quality than men. While the evidence presented by the claimant focused on the menopause, the claimant’s case was that the building was too cold. She did not have cold flashes.'
Rose v Commissioner of Police for the Metropolis
Ms Rose was a police officer. She had a number of medical conditions and also began to experience menopausal symptoms which caused sleep disruption and made it difficult for her to work nights. Her employer took her off night duty and referred her to OH. She was subsequently signed off work due to depression and stress. Her manager spoke with her regularly to find out how she was feeling and to explore when she might be able to return to work. During some of those meetings, Ms Rose mentioned some of the problems she was experiencing with the menopause (as well as other unrelated medical issues). Her medical records indicated that she had sought advice from her doctor about her menopausal symptoms including night sweats, flushing and sweating, headaches, dizziness, brain fog and panic attacks.
She later resigned because of the way her absence had been managed and brought proceedings against her employer, arguing that she had been discriminated against (in part) because of her early menopause. The tribunal concluded that her menopausal symptoms didn't amount to a disability because there was no evidence that they adversely affected her ability to carry out day to day activities: 'We conclude that an ability to work at night is not a day to day activity and in any event it is unclear to what extent the menopause, rather than the claimant’s other conditions, impacted on this.'
The point about night work not being a day to day activity is, in our view, wrong. The Statutory Guidance to be taken into account in determining questions relating to the definition of disability refers to normal day to day activities in the context of work and includes 'keeping to a timetable or shift pattern' and makes it clear 'whether an activity is a normal day-to-day activity should not be determined by whether it is more normal for it to be carried out at a particular time of day'.
McMahon v Rothwell & Evans LLP and Pundick
Ms McMahon was an apprentice conveyancer. She had a number of short absences some of which could have been related to the menopause (she was in the early stage of exploring her symptoms with her GP). She had also been late getting to work and told her employer that her menopausal symptoms had become 'unbearable' and that she sometimes felt 'so hot it's like I have flu' which meant that she had to change her clothes.
The following year, Ms McMahon had further short term absences, for flu, an eye complaint and to look after her sick children. Her employer became concerned that she was becoming 'unreliable' and spoke to her about her absence record. Ms McMahon said that she downplayed her symptoms after that conversation because she was worried about losing her job. She was dismissed a few months later due to her timekeeping, extended breaks and frequency of her absences.
She brought proceedings and argued that her absences and poor time keeping were caused by her menopausal symptoms and that her dismissal amounted to unfavourable treatment arising out of her disability. She also said that her employer should have made reasonable adjustments to its absence policy and tolerated her unpredictable absences.
The tribunal rejected her claims. It accepted that menopausal symptoms could be a disability but said that the effects on Ms McMahon were not substantial and she had provided very little corroboration or contemporaneous evidence of her symptoms or how they affected her on a day to day basis.
It also said that even if Ms McMahon was disabled her employers didn't know and couldn't have reasonably been expected to know that her absences were due to her menopausal symptoms. She had mentioned the menopause to them twice - once when she was late and on another occasion where she said that the menopause caused her to be 'impulsive'. Her major absences were due to flu and dry eyes. Although having flu was unrelated to the menopause, the tribunal did accept that her dry eyes cold be a symptom of it. However, they said they 'would not expect the person in the street to necessarily know this'.
Ms McMahon had submitted fit notes which had mentioned her menopausal symptoms but these had been sent straight to payroll and were not viewed by the partners in the business (which didn't have a HR function due to its small size). The tribunal took the view - on these facts - that this was not enough to put the business on notice of her menopausal symptoms.
The argument for reform
These cases demonstrate that it's not easy for women to use existing discrimination laws to bring successful claims linked to the menopause - particularly as the myriad range of symptoms can make it difficult for women, and their employers, to attribute these to the menopause.
The Women and Equalities Committee are currently looking into how menopausal women are treated at work and what steps need to be taken to protect them. One option they are considering is whether to recommend adding menopause to the list of protected characteristics in the Equality Act 2010. In addition, Carolyn Harris MP has called for a “menopause revolution” and her private member’s bill on the menopause will be debated in UK Parliament on 29 October 2021.
In 2017, the government published research and analysis on 'Menopause transition: effects on women’s economic participation' which considered how women could be supported during the menopause by their employers and government. It suggested that women and medical professionals needed more information about the menopause so they are more aware of and sympathetic to the effects of menopause transition.
Despite this, there's still insufficient guidance and educational literature to help employers take a proactive stance when dealing with employees going through the menopause. And, there's little guidance for employees to help them understand and ask for help from their employers.
Need more information?
My colleague, partner Jenny Arrowsmith is an expert in this area and has lectured widely on this subject. Please contact her if you'd like a copy of our precedent menopause policy, or need help training your staff.
“I can see that this will carry on building until such time as there are some really big, group lawsuits, which I’m sure there will be,” said Dee Murray, the founder and chief executive of Menopause Experts, which carried out the research. “The women in a lot of the big companies are already setting up their own private, internal menopause support groups. If they decide their issues are not supported by HR, you could potentially have a real problem.”