Written evidence from HCSA -the hospital doctor’s union [MEW0057]

Introduction

HCSA is a nationally recognised professional association and trade union which represents and advises all grades of hospital doctor in the UK, both in the NHS and Private Sectors. Our response will seek to highlight the experiences of UK doctors – a highly skilled and educated workforce; typically working with huge levels of responsibility in dynamic and often stressful environments. It would be easy to assume that as healthcare professionals, doctors would be confident in identifying symptoms and advocating for themselves when experiencing the transition of the menopause. However, our survey data disproved this assumption. It is also clear that the NHS is not consistently promoting a supportive environment for its own workforce, and that stigma and lack of awareness prevails even amongst the medical profession. Nor is there adequate legislation or national guidance to facilitate best practice from employers.   If not resolved, this will have implications both for our members and the patients they care for.

Our response will refer to data we have gathered in August – September 2021 from 38 doctors of whom had personal experience of menopause at work in the last 5 years. 34 of our survey respondents’ experience of the menopause was whilst working primarily for the NHS. Therefore, our submission may also be useful in considering wider implications of the working environment for all NHS workers; the public sector and society as a whole.

Summary of submission:
1. Nature and extent of menopause discrimination
2. Impact on wider society
3. Economic impact
4. Factoring in employee needs
5. Implementation
6. Best practice
7. Supporting those who do not identify as women
8. Current legislation
9. Amending Equality Act 2010
10. Further legislation
11. Role of Government
12. Government Equalities Office
13. Concluding remarks

 

  1. What is the nature and the extent of discrimination faced by women experiencing the menopause?
     

1.1   HCSA Menopause at Work survey revealed that menopause discrimination is a significant issue for our members. Over half of survey respondents reported that their menopause had a severe or moderate impact on their working life, with only two respondents reporting no impact. The majority of respondents did not feel supported by their employer during this time.
 

1.2   Much of the discrimination experienced was indirect, wherein the working environment, policies and practices put menopausal doctors at a disadvantage or created obstacles in carrying out their roles. Half reported an uncomfortable working temperature; a third felt their breaks were inadequate and nearly a fifth reported poor facilities such as proximity to toilets and lack of sanitary bins. A fifth of respondents felt there were practices and policies in their workplace that put those going through menopause at an unfair disadvantage, for example one respondent reported they had “Requests for reduced hours and flexible working declined”.
 

1.3   HCSA’s survey demonstrated that menopause is still a taboo topic, which prevented our members from accessing the support they required. Two-thirds did not raise difficulties with their manager, citing reasons such as embarrassment, or finding managers “unapproachable and uncaring”. Some felt it would put them at a professional disadvantage, for example “Felt scared that I would be picked on if I raised concerns”. Others reported their own lack of understanding around menopause hindered them from seeking help, “Hadn’t really understood the impact it was having on me until later once I was on adequate HRT” and poor awareness as to what support was available from employer, “didn’t realise they could adjust”.
 

1.4   Some of those who spoke to their manager reported positive changes such as provision of fans, offer of different PPE, extra breaks and fast track referral to menopause clinic. One member described feeling supported when their manager responded with open conversation and “asked what I felt I needed”. Others found that even after approaching their manager, support was not forthcoming: “Did not want to know & help with the issues despite raising it several times.”
 

1.5   HCSA survey data also points to bullying, harassment and direct discrimination. Nearly a fifth reported experiencing humiliating, offensive, intimidating or hostile behaviour, including being described as “bumbling like an old woman” and experiencing “intimidation from colleagues related to experience of work related stress which I believe was triggered by menopausal symptoms“. One respondent described witnessing their colleague who was going through the menopause being undermined: “suggestions were often ignored and/or regarded as irrelevant/trivial/too much bother”. Two respondents also reported experiencing direct discrimination.
 

1.6   Four respondents reported they had been treated unfairly as a result of complaining about discrimination or harassment, including in this example from an ethnic minority doctor “I have been victimised when I informally raised concerns. I am from an ethnic minority so I already face discrimination so this adds to it. I feel that increasing age, leads to employer also treating us less favourably. My career progression has been blocked. I am paid less than my white colleagues.”
 

1.7   It is also worthy of note that our survey respondents demonstrated the intersectionality of menopause discrimination with other forms of discrimination. Responses referred to the interplay of menopause with discrimination because of age, race and mental health. One survey respondent described the following experience of sexism: “Was told by a senior that they hoped I wasn’t pregnant as they were fed up of “bloody female ****** trainees messing up their training and the rota”. This was after I had had one day off after being told I was menopausal at a very young age.”
 

1.8   It is also important to acknowledge not all of those going through the menopause identify as female, nor is it an experience limited to those aged over 40. Furthermore, that those with disabilities may experience worse menopausal symptoms.
 

1.9   Menopausal symptoms last 4 years on average, but one in every 10 women in the UK experiences prolonged symptoms for up to 12 years[1]. Direct or indirect discrimination over a lengthy timespan is likely to be very damaging to the individual.
 

  1. How does this impact wider society?

 

2.1   HCSA’s position is that a lack of support for doctors experiencing the menopause contributes to wider inequalities within society.
 

2.2   Mend the Gap: The Independent Review into Gender Pay Gaps in Medicine[2], demonstrated a gender pay gap of around 25% for hospital doctors. The analysis showed three main reasons for gender pay gaps, firstly an overrepresentation of women amongst less than full time workers. Secondly, a tendency of male doctors to be older and in roles at higher grades. Finally, a higher likelihood of male doctors to hold Clinical Excellence Awards and be in receipt of other additional payments.
 

2.3   Menopause can be linked to all three of these reasons. Our survey respondents reported reducing or changing hours, retiring early, taking sick leave, being overlooked for promotion and changing or leaving their roles as a result of menopause. The gender pay gap reaches far beyond menopause and its implications are seen at every point in a women’s career. Yet when you consider that menopause is HoweYet a life event faced by nearly every woman, oftentimes at the peak of her career, it is certainly valid to consider it a significant factor in the gender pay gap. More support for menopausal doctors to stay in the workplace and maximise their full potential will serve to reduce the gender pay gap.
 

2.4   When doctors going through the menopause are leaving or not progressing within the workplace, the NHS and its’ patients miss out on a wealth of experience. Research points to the added value those who have experienced the menopause bring to the workplace in leadership roles[3]. Representation is also an important facet of patient care, which therefore begs the question of the impact on patients experiencing the menopause when doctors of this group are not adequately represented in the workplace.
 

2.5   Two-thirds of survey respondents did not report substantial changes to their role as a result of menopause, yet many commented that work was very challenging, “I was exhausted but carried on working” and “Felt unwell but got less support at work”.  We do not have any data that suggests an impact on quality of work, nor the impact on the personal lives of our members who experienced difficulties in menopause; however there is a likelihood that discrimination in the workplace will also have wider societal implications in these areas. 

 

  1. What is the economic impact of menopause discrimination?
     

3.1   NHS funding has never been more crucial, and it is of note that the Government’s recent funding packages to support clearing the Covid backlog are in part to address staffing pressures. It is a waste of public money for highly skilled and trained doctors to leave the workplace because they are transitioning through the menopause.
 

3.2   One in ten HCSA survey respondents took sick leave as a direct consequence of menopause. This will translate to a considerable cost to NHS that could be minimised with better workplace support.
 

3.3   Employment tribunals related to menopause have risen in 2021. NHS bodies are at risk of costly tribunal claims against them if practice around menopause is not improved[4].

 

  1. How can businesses factor in the needs of employees going through the menopause?
     

4.1   Good workplace practices such as maintaining adequate staffing levels, compassionate people management and flexibility are key in retaining and supporting employees going through the menopause.
 

4.2   Organisations must nurture open dialogue to break the stigma around menopause. One respondent informed us: “Menopause remains invisible in the NHS. I have felt invisible and left to 'get on with it.'” Managers must be confident in discussing menopause with employees. Signposting to extra support, and providing time off for colleagues to access this, is a simple yet invaluable step.
 

4.3   Employers, including NHS England, should design menopause policies with input from staff and trade unions. Importantly, policies should be implemented meaningfully and well communicated.  Only three HCSA survey respondents were aware of a menopause policy within their workplace.
 

4.4   Employers must incorporate menopause training into standard management training packages. Health Education England must increase training on gynaecological health in the core curriculum of medical students to ensure that doctors of the future are equipped to diagnose and treat. This will also accelerate a cultural shift around menopause awareness.

4.5   Employers should review their facilities and make adaptions for temperature control, drinking water and bathroom facilities including adequate sanitary bins. Uniform policies should be designed with thought given to those experiencing the menopause.
 

4.6   Employers should make adjustments for menopause, regardless of whether the individual is considered protected by the Equality Act 2010.

 

 

  1. How can practices addressing workplace discrimination relating to menopause be implemented? For example, through guidance, advice, adjustments, or enforcement?

 

5.1   HCSA is firmly of the opinion that employers, many of whom are NHS, barely meet the minimum legal requirements. It is therefore necessary to close the legislative loophole on menopause discrimination, and to back this up with Government guidance and enforcement (as detailed in sections 8, 9, 11 and 12). 

 

  1. What are examples of best or most inclusive practices?
     

6.1   NHS Wales has a standard menopause policy that applies to every NHS body in Wales, tailored to each organisation. It includes a risk assessment checklist which is a useful tool to enable managers to have structured conversations from a health and safety perspective. HCSA strongly recommends that NHS England implements a similar national policy.

 

6.2   Survey respondents described the usefulness of initiatives such as ‘menopause cafes’ and ‘menopause networks’ in destigmatising menopause, reducing isolation, encouraging open dialogue and providing pastoral support and advice.

 

6.3   Awareness campaigns and menopause webinars can be utilised to dispel stigma and create openness from all of the workforce; not isolated to those experiencing the menopause.

 

6.4   Survey respondents praised managers who took a proactive approach. Managers can model ‘good practice’ by implementing and enabling reasonable adjustments for women who are experiencing difficulties in the workplace without the need to evidence all aspects of ‘disability’ under the Equality Act 2010. This should be reinforced in a workplace menopause policy.

 

 

  1. How should people who experience the menopause but do not identify as women be supported in relation to menopause and the workplace?
     

7.1   Menopause policies must be inclusive, so that those experiencing the menopause who are transgender or non-binary can access the available support. This extends to inclusive language when training, ensuring initiatives such as menopause cafes are not gender exclusive and practical aspects such as providing sanitary facilities for all.  
 

7.2   HCSA considers menopause a common but truly subjective experience, so menopause policies must reflect this by encouraging tailored individual support, which in turn will make workplaces inclusive for transgender or non-binary employees. Informal discussions with a manager can be useful for anyone going through the menopause to discuss adjustments, employer’s approach and to alleviate concerns.

 

8         How well does current legislation protect women from discrimination in the workplace associated with the menopause?

 

8.1   HCSA’s position is that existing legislation does not offer sufficient protection due to practical difficulties in application of the law. Challenges to unfair practices for menopause largely fall within the Equality Act 2010, invoking the protected characteristics of age, disability and sex. The Health and Safety at Work Act 1974 also provides for safe working, in theory, covering working conditions when women experience menopausal symptoms in the workplace.
 

8.2   The NHS is covered by the public sector Equality Duty (PSED), requiring public authorities to “1. Eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act. 2. Advance equality of opportunity between people who share a protected characteristic and those who do not. 3. Foster good relations between people who share a protected characteristic and those who do not.”[5] It is clear this is not the reality for our survey respondents.

 

8.3   Consider the following scenario: a woman has time off due to adverse symptoms connected to menopause, triggers a sickness absence policy and consequently is subjected to a performance review procedure or disciplinary action.
 

8.4   Direct sex discrimination would be difficult to prove in this scenario as the employer could argue they would have subjected a man with similar absence levels to a performance review and may have a defence comparator to demonstrate this argument. 
 

8.5   To argue indirect discrimination, the sickness absence policy could be called into question. The employer’s justification would be the requirement to have an acceptable level of attendance which must be maintained or improved on.  An indirect sex discrimination claim could fail on the basis of the policy being a ‘proportionate means of achieving legitimate aim’. The legitimate aim would be to meet the needs of patients and hospital by ensuring adequate attendance levels.
 

8.6   Further, unless the woman could show she meets the definition of disability under section 6 of the Equality Act 2010 including the ‘substantial and adverse’ and ‘long-term’ tests, she would find it difficult to demonstrate a need for reasonable adjustments. In this case, examples of useful adjustments could be leniency or disregard when applying the policy. Many women report unwelcome symptoms that impact their day-to-day life, which could be consistent with the criterion for the protected characteristic of disability. However, the requirement to evidence that substantial impact has lasted, or is expected to last, 12 months or more, means women are forced to suffer for a longer period to demonstrate the legal need for reasonable adjustments. Although it is deemed ‘good practice’ to facilitate reasonable adjustments without insisting evidence of timeframes, many employers are only compliant with the law when absolutely necessary.
 

8.7   Evidencing menopause is a further legal hurdle, as shown in point 1.3, many do not report difficulties connected to menopause, due to embarrassment or the perception of being ‘unprofessional’.
 

8.8   The practical difficulties of obtaining a diagnosis is another issue when seeking to prove disability discrimination, since many symptoms of menopause can be associated with other conditions. Our survey showed a wide range of symptoms that were affecting the respondent’s work, with three-quarters reporting emotional difficulties such as anxiety and over half reporting physical symptoms ranging from headaches, fainting and menstrual problems to tachycardia. One respondent told us: “I know at least one of my colleagues who retired early due to menopausal symptoms being misdiagnosed as Anxiety disorder! The awareness of the classical, physical symptoms overshadows/obliterates awareness of the psychological ones which was why I simply thought I was developing dementia!!!”

 

8.9   Although the test for disability is a legal one, medical evidence is often mandatory. Many women do not consult with their GP, and some report struggles in accessing the support they require. A survey respondent working as a GP described this attitude to menopause from a colleague, “One male partner at my previous practice particularly hostile to the menopause. Declined to prescribe to any patients. In denial of symptoms and impact.”

 

8.10                        Some medical professionals including Occupational Health services are reluctant or unable to evidence that a worker satisfies all stages of the disability ‘test’ when associated with menopause, in particular the ‘long-term’ element. In lieu of a diagnosis, employers focus on obtaining medical opinion and legal advice compliance on whether a worker meets the relevant tests of ‘disability’ under the Equality Act 2010 rather than implementing a good practice and ‘reasonableness’ approach.
 

 

9.               Should current legislation be amended?

 

9.1   It is HCSA’s position that current legislation should and could be amended to better protect women and prevent menopausal discrimination.
 

9.2   Menopause’ should be invoked as an additional and entirely separate protected characteristic similar to the provisions under ‘pregnancy and maternity’ under the Equality Act 2010. Whilst critics argue it could open the floodgates to the singling out of other health conditions, in reality most conditions and disabilities are adequately covered by the definition under section 6 of the Equality Act 2010.
 

9.3   Menopause has parallels to the protected characteristic of pregnancy or maternity, in the sense that menopause specifically impacts on the health of women, some trans people and some non-binary people, and lasts for a temporary period, of which can have long-term and irrevocably damaging effect on their health, career and position in the workplace. This is against the backdrop of an ever-cascading flow of issues that impact on women and the workplace.
 

9.4   The rise in menopause related cases at Employment Tribunal demonstrates not only empowerment and less tolerance from women, but further, reveals demand for more support and clarity, not least to avoid other women from experiencing the pitfalls.
 

9.5   Lack of consistency from Tribunals in determining whether menopause is an issue of disability or sex creates uncertainty for employers and managers which leads to poor implementation of policy. In turn, the law is adhered to only when and if absolutely necessary. Clarity is essential to ensure women do not experience menopause related discrimination.
 

9.6   Historically, many workers have made reference to symptoms consistent with menopause, but without expressly referencing it. This has resulted in a concealment of the true extent of the problem. Amending legislation will serve to expose the extent of discrimination and achieve better outcomes for those experiencing it.

 

  1. What further legislation is required to enable employers to put in place a workplace menopause policy to protect people going through the menopause whilst at work?
     

10.1 In addition to what is detailed in section 9, the government should draft a Code of Practice relevant to menopause in the workplace, similar to that by the Equality and Human Rights Commission for Sexual Harassment and Harassment at Work: Technical Guidance’.[6] Such documents provide useful guidance for employment practitioners, representatives and employees and employers alike. They are also artillery in challenges to unfair working practices.
 

10.2 Further, similar to the impending duty for employers to ‘prevent’ sexual harassment in the workplace, an active duty to prevent menopausal discrimination should be implemented. This could form part of a statutory code of practice rather than to supplement technical guidance (as referred to above).

 

10.3 A statutory code of practice similar to provisions surrounding flexible working could be drafted and applied to introduce a proactive duty requiring employers to take ‘all reasonable steps’ to prevent menopausal discrimination in the workplace and make reasonable adjustments. The code could also include a sensible timeframe for adverse symptoms (less than 12 months) for reasonable adjustments to be implemented.

 

10.4 Requests for reasonable adjustments under this statutory code could state that employers must deal with requests to change working provisions, criteria or practices, to better manage menopause in a ‘reasonable manner’ and permit legitimate and limited reasons for rejection of any such requests.

 

10.5 A statutory right to appeal process would minimise workplace menopausal disputes and promote their resolution. It also affords the employer an opportunity to address the matter directly in a ‘reasonable manner’.

 

10.6 HCSA believes that the combination of implementing a statutory duty alongside invoking ‘menopause’ as a protected characteristic will encourage employers to implement adjustments and prevent unfair practises. This will remove some of the barriers already faced by women in the workplace.

 

 

  1. How effective has Government action been at addressing workplace discrimination related to the menopause, and what more can the Government do to address this issue?

 

11.1 The continued growth in menopause cases at Tribunal is evidence that the Government has not done enough. The Government must ensure employers prevent workplace discrimination before cases reach Tribunal.
 

11.2 Sections 9 and 10 reference practical steps the Government can take in preventing workplace discrimination, through legislation and Codes of Practice.
 

11.3 Additionally, the Government should consider running a national awareness campaign to destigmatise menopause.

 

 

  1. How effectively is the Government Equalities Office working across Government to embed a strategic approach to addressing the impact of menopause in the

workplace?

 

12.1 The work of the GEO to embed strategy is gradual, which serves to contribute to problems such as lack of consistency and clarity in Tribunal decisions.
 

12.2 The GEO could seek to lead the way forward in culture change, training and awareness. HCSA   recommends that GEO takes a proactive role in enforcement, determining whether public bodies such as the NHS have consciously considered the needs as outlined by the PSED in point 8.2.

 

  1. Concluding remarks

The experiences of doctors surveyed by HCSA demonstrate the urgency for action on menopause discrimination. We welcome this inquiry and are hopeful its recommendations will translate to meaningful change. The Government must take the lead in guidance, awareness, implementation and enforcement. Legislative action must be accompanied by cultural change within public sector employers such as the NHS. Crucially, HCSA would seek to invite discussion, training and education surrounding menopause in order to destigmatise women’s health in the workplace. 

 

September 2021


[1] NHS, Overview, Menopause: https://www.nhs.uk/conditions/menopause/

[2] Department of Health & Social Care (2020), Mend the Gap: The Independent Review into Gender Pay Gaps in Medicine in England: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/944246/Gender_pay_gap_in_medicine_review.pdf

[3] Jack, Riach and Bariola (2018): Temporality and gendered agency: Menopausal subjectivities in women’s work: https://journals.sagepub.com/doi/full/10.1177/0018726718767739

[4] The Guardian (2021), Menopause at increasing number of UK employment tribunals: https://www.theguardian.com/uk-news/2021/aug/07/menopause-centre-increasing-number-uk-employment-tribunals

[5] ECHR (2021), Public Sector Equality Duty, https://www.equalityhumanrights.com/en/advice-and-guidance/public-sector-equality-duty

[6]EHRC (2020), Sexual Harassment and Harassment at Work: Technical Guidancehttps://www.equalityhumanrights.com/en/publication-download/sexual-harassment-and-harassment-work-technical-guidance