In this response, I focus on those questions that are concerned with the legal issues and whether there is sufficient support within the current legal framework for those experiencing the symptoms of menopause at work. I am a Senior Lecturer in Law at Abertay University and have been undertaking research on the new and emerging boundaries of work-life conflict. This response draws from my interest in this area and the research that I am undertaking in relation to a broader project on ‘Regulating the Boundaries of Work-Life Conflict’, which includes an examination of menopause in the workplace from a legal perspective.
There are few reported cases concerning menopause at work. While this could suggest that the current legislation works well, it is more likely that this is not representative of the lived experiences of many women. Indeed, research by CIPD indicates that the majority of women going through the menopause report that it has a negative impact on work. While this does not necessarily mean that they are being discriminated against, it is important to ensure that the question is not just, are they protected against discrimination, but also how are they supported in work.
The reported cases have either pursued the matter as one of sex discrimination or framed it as disability discrimination. Both have the potential to be effective, but they will not necessarily be appropriate for everyone. Age is also relevant and has been considered alongside sex. Gender reassignment may also be relevant for those who have, are undergoing or intend to undergo gender reassignment. A consideration of this case law is useful because it highlights the ways in which current legislation has been used, as well as the potential limitations.
In the first reported case, Merchant, the claimant argued that she had been unfairly dismissed and discriminated against on the grounds of sex when she was dismissed on capacity grounds related to poor performance, which she argued had been impacted by the symptoms of the menopause. The Employment Appeal Tribunal (EAT) held that she had been unfairly dismissed because while it seemed apparent that she was either incapable or unsuitable for the job following periods of performance management, this belief was not based on reasonable grounds as the employer had not investigated the impact that the menopause had on her ability to undertake her role. Instead, the manager who made the decision to dismiss based his reasoning solely on his wife and his HR advisor’s experiences of menopause rather than investigating the claimant’s specific circumstances. The EAT further held that this amounted to direct sex discrimination because they were satisfied that a health condition reported by a comparable male employee would have been referred to OH for further investigation before a decision to dismiss was taken. Employment Judge Christensen highlighted the irrational and perverse reasoning of the manager regarding his knowledge of the impact the menopause on her work and that he did not take menopause seriously.
This case highlights some of the key problems for those experiencing the symptoms of menopause at work and the potential limitations of discrimination law in practice. In this case, the claimant only directly informed her employer that she was suffering from menopausal symptoms that could explain her poor performance towards the end of the process when a decision on dismissal was possible. There may be many reasons why the claimant failed to do so, including lack of awareness of the potential connection between her poor performance and her symptoms. Nevertheless, this lack of disclosure meant that her line manager could not take this into consideration when implementing the performance management procedure. This reinforces the challenges of disclosing private health-related conditions at work, particularly those that are female-specific and considered to be taboo. Additionally, it underscores that if the employer is unaware that the employee is experiencing symptoms of menopause, then it will not be possible for the employee to claim that this is the reason for the alleged discriminatory treatment.
The case also reinforces the kinds of inherent discrimination that those experiencing menopause symptoms at work may face. In particular, that it is not taken seriously because it effects people in very different ways. This reinforces that responses to menopause at work cannot be one-size-fits-all and instead need to reflect the range of diverse experiences. This could also pose problems in identifying appropriate comparators. It also highlights the stereotypical views relating to menopause and the need for a culture change to break down this stigma and normalise these experiences at work.
In Davies, the claimant succeeded in her claims that she had been unfairly dismissed and discriminated against because of something arising in consequence of her disability. In this case the claimant was peri-menopausal and had experienced a range of significant related symptoms including: excessive bleeding, anaemia, dizziness, anxiety, memory loss and loss of concentration. The claimant mistakenly believed that she had dissolved medication for a related condition, cystitis, in a jug of water that two men had drank from in her absence. She informed them of this belief and reported it to her employer. Following an investigation, it became clear that she did not do so. The related Health and Safety Report concluded that she had lied and she was subsequently dismissed for gross misconduct. No regard was paid to how her condition may have impacted on the events. The ET held that she had been unfairly dismissed as there were no reasonable grounds for believing that she was guilty of misconduct, particularly because no regard was given to the impact of her condition on her conduct. Furthermore, the ET held that the respondent had discriminated against her on the grounds of something arising in consequence of her disability, per s.15 of the Equality Act 2010 (EqA). The ET decided that while the aim of having honest and trustworthy staff was a legitimate one, dismissing her was not a proportionate means of achieving this aim and other responses, such as a warning, would have equally satisfied it.
While evidence was led regarding the claimant’s condition and how it impacted on her day-to-day life, the respondent conceded that she was disabled per s.6 EqA. Consequently, there is no consideration of the criteria for disability here and so no guidance can be gained from its application to cases involving menopause. This would have been useful because going through the menopause is a natural process and not something that is necessarily disabling. Consequently, while this case reinforces that the symptoms of menopause can amount to a disability, it is important to remember that this will not always be the case and each case will turn on its own facts. Nevertheless, further guidance on this, such as in the Code of Practice on the Equality Act 2010 produced by the Equality and Human Rights Commission would be useful for individuals, employers and also ETs.
In Bonmarche, the claimant successfully argued that she had been directly discriminated against and harassed on the grounds of age and sex after being subject to persistent humiliating comments and behaviour while she was going through the menopause. These were directly related to either the menopause or her age. Furthermore, her manager refused to speak to her about her symptoms and refused to make adjustments to accommodate them, such as adjusting the temperature.
There are some notable things about this case. Firstly, it was not contested. Secondly, the Employment Judge identified that the appropriate comparator here was an employee who was not a female of menopause age. This is interesting because it contains elements of both sex and age. Indeed, the Employment Judge went on to find that she had been directly discriminated against on the grounds of age and sex, drawing no distinction between the grounds nor considering them separately. This was also true of the finding of unlawful harassment on the grounds of age and sex. This suggests that the Employment Judge considered both together when reaching their decision. In other words, it was the interconnection between age and sex that was relevant here. While there was no explicit consideration of this in the judgment, it does highlight the potential benefit of enacting s.14 EqA and formally allowing cases of combined discrimination to be raised. However, it also poses potential problems if menopause is solely framed in this way. For instance, this does not include those who experience menopause early, either naturally, because of an underlying health condition or following an operation. It also does not encompass those who experience menopause following gender reassignment surgery. While many women do experience menopause in their 50s, this is not the only group who are affected, so it is important to be cautious about placing too much weight on specific protected characteristics, and combinations of these, to the exclusion of others.
Overall, these cases highlight that while discrimination cases can be successful, there are also challenges to relying solely on discrimination law in this context. Instead of having a right that would empower employees to request reasonable accommodations or account be taken of the impact of menopause on their work, a legal remedy is only available as a response when a problem arises. Any review of the legal framework should ensure that the rights adequately include the different experiences of menopause at work. This could be part of a broader review of certain rights.
While the focus in the case law has been on the discrimination law provisions, there are other pieces of legislation that are also relevant. This includes the right to receive statutory sick pay (SSP), the right to request flexible working and health and safety legislation.
The right to receive payments when absent from work is contained within the Social Security Contributions and Benefits Act 1992. Someone who is absent for reasons relating to the symptoms of menopause could receive SSP in respect of those absences. This is paid in respect of a day of incapacity for work (s.151(4), however to be entitled to claim SSP the individual must have been absent for a minimum of 4 consecutive days of incapacity (s.152(2) and s.155(1)). It is also important to bear in mind that this does not contain a right to time off work, and an individual may be vulnerable to dismissal for recurring short-term absences. This was the case in Sahota v The Home Office. While this was concerned with absences for IVF treatment, it underscores the difficulties when dealing with recurring absences rather than specific blocks. This could also pose problems for those experiencing the symptoms of menopause, which may also be more likely to be recurring short-term absences. It also requires disclosure of the reason for absence, which may be undesirable for those experiencing menopause at work.
All employees with 26 weeks continuous service have the right to request flexible working. This offers notable possibilities for those experiencing the symptoms of menopause because they can request a change in hours, place and/or times of work. This can be helpful in several ways. For instance, if employees cannot sleep well because of hot flushes, being able to start work later could enable them to be more productive. Allowing employees to work from home may also be beneficial for those experiencing symptoms like heavy bleeding, which would make working in the workplace more difficult.
However, it is also important to remember that it is only a right to request, and employers have significant discretion to refuse requests in practice. Amending the legislation to challenge employers’ reasons for refusal would be of broader benefit and make this right more meaningful in practice. Furthermore, employees must have 26 weeks employment continuity and can only make one request per year, making it more difficult for new employees to submit requests and rendering the right inflexible in practice. Even if a request is accepted it results in a permanent change to the working arrangements. Such an approach is unlikely to be helpful in practice where only a short-term change is required, or what it sought is the flexibility to work from home or come in later as the situation requires. The legislation does not clearly cover this.
S.2(1) of the Health and Safety at Work Act 1974 (HSWA) requires employers ‘to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.’ S.2(2)(e) states that employers should provide working environments that are, ‘as far as reasonably practicable safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.’ This could be interpreted as requiring employers to ensure that the working environments are adequate for those experiencing symptoms of menopause at work. Accommodations such as adequate ventilation, fans, access to cold water, access to the toilets, adequate breaks etc, would appear to fall within these obligations. However, this would not extend to the kind of challenges identified in the case law, which are more about understanding the impact that the symptoms of menopause can have on work and work performance.
Yes, various amendments could be made that would not only be beneficial in this context, but would also help others manage different work-life conflicts. My recommendations are:
Amending the legislation in the way noted above would certainly help ensure that employers adopt and implement meaningful menopause policies in practice. If this was achieved, I am not certain that further legislation would then be necessary. While there may be some interest in specific rights to menopause leave, I think the appropriate balance can be achieved with a more robust right to request flexible working that works more effectively for all employees. However, there may be some merit in developing a more general right to medical leave, which could cover a broad range of medical-related absences and not just menopause. This would map on to the existing SSP provisions. Comparisons could be drawn with the right to medical leave in the US Family and Medical Leave Act. While this contains various restrictive qualifying conditions, those who do qualify are entitled to a total of 12 normal work-weeks of unpaid leave for either family or medical reasons per year. Medical leave is limited to serious health conditions which prevent the employee from working, and is defined as ‘illnesses, injuries, impairments, or physical or mental conditions which involve inpatient care’ or ‘continuing treatment by a health care provider.’ While this is unlikely to include most of those experiencing symptoms of menopause at work, a less stringent threshold could instead be applied. One benefit of the US approach is the ability to utilise medical leave on an intermittent basis or a reduced leave schedule where this is medically necessary. Such a flexible approach may be helpful for those who experience significant symptoms of menopause at different times, or over a period of time, and who require time off as a consequence. Although the same outcome could possibly be achieved by amending the right to request flexible working as suggested above.
 It also draws from: Weldon-Johns, M., ‘The future of work-family regulation – emerging boundaries of work and private life’ presented at the Society of Legal Scholars Conference 2020, University of Exeter.
 59% of women, CIPD, Majority of working women experiencing the menopause say it has a negative impact on them at work (March 2019).
  1 WLUK 683.
 Ibid, -.
 Ibid, -.
 Ibid, -,  and -.
 This issue has been highlighted in research by the CIPD (n.2); and Griffiths, A., MacLennan, S.J., and Hassard, J., ‘Menopause and work: An electronic survey of employees’ attitudes in the UK’  76 Maturitas 155.
  5 WLUK 156.
 Ibid, .
 Ibid,  and .
 Ibid, .
 Ibid, .
 Case No: 4107766/2019.
 Ibid, .
 Ibid, .
 Ibid, .
  2 CMLR 29.
 Sections 80F-80I Employment Rights Act 1996 (ERA); Flexible Working Regulations 2014, SI2014/1398.
 S.80F ERA.
 S.80G(b) ERA; Anderson, L., ‘Sound Bite Legislation: The Employment Act 2002 and New Flexible Working “Rights” for Parents’  32(1) ILJ 37; James, G., ‘The Work and Families Act 2006: Legislation to Improve Choice and Flexibility?’  35(3) ILJ 272.
 As also suggested by James, G., ‘Mothers and fathers as parents and workers: family-friendly employment policies in an era of shifting identities’,  31(3) JSWFL 271; Weldon-Johns, M., Assisted Reproduction, Discrimination and the Law (Routledge, 2019), 107-108.
 S.80F(4) ERA.
 Weldon-Johns, (2019) (n.21), 107-108 on ART.
 For a consideration of this in the context of ART see: Weldon-Johns, (2019) (n.21), 111-116.
 Public Law 103-3107 Stat 6.
 Ibid, §§101(2)(A)-(B).
 Ibid, §§102(a)(1) and (c).
 Ibid, §102(a)(1)(D).
 Ibid, §101(11). Further in defined: 29 CFR 825, §825.113-§825.115.
 Ibid, §102(b)(1).