Written evidence from Lewis Silkin LLP [MEW0073]

 

 

Introduction to Lewis Silkin LLP and the reason for submission

 

Lewis Silkin LLP is a law firm with a large employment and immigration practice of over 150 lawyers; our work involves a range of issues including discrimination law.  Given our experience and expertise as well as the exposure that we have to a large number of businesses, we are in a strong position to offer some insight into this very real issue. Lewis Silkin LLP is pleased to be contributing to what it hopes will be a frank and comprehensive consultation to better understand the challenges and bring about change in the most positive way.

 

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

 

Although the menopause is becoming easier to talk about, it is still largely considered to be a taboo subject for many people, who find it difficult or awkward to speak with managers about related issues.

 

Experiences shared in our internal discussion included: being made fun of, having the symptoms dismissed out of hand, and generally not being taken seriously.  Recent cases show a lack of understanding of the menopause even at the highest level of the judiciary, there is an example of a judge deciding that as the Claimant was able to carry on with caring responsibilities then the symptoms were not deemed to be serious. This highlights the importance of raising awareness, training and education in respect of the menopause across the board.

 

We heard examples of individuals who were dismissed for performance issues which were caused by the effect of the menopausal symptoms, while the employer refused to take that background into consideration.  There was anecdotal evidence that a significant number of women left the workforce as a result of the menopause – either the symptoms were becoming too challenging to manage in work, or as a result of unfavourable treatment by colleagues or employer - related to the menopause.

 

The effect of women leaving the workforce during their late 40s and early 50s is multi-faceted.  It is particularly difficult for individuals to find new jobs and feeds into the fragile economic independence of (predominantly) women.   There is an obvious detrimental effect for business and for industry as a whole as women leave the workforce at the peak of the careers.  There is a tangible loss of skills and experience as well as role models for younger women coming up the ranks within the organisation. 

 

What is the economic impact of menopause discrimination?

 

The economic effect of so many women leaving work, often to retire early, is that they start drawing their pension earlier than planned and stop contributing to the economy in terms of tax contributions.  The reduced income will often have a direct effect on their spending capacity which again detrimentally affects the bigger economic picture. 

 

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

Businesses should ensure they have comprehensive policies and training regarding the menopause and its impacts.

 

We recommend that businesses should provide training for line managers (in particular) and employees generally to understand more about the symptoms, and also how to best approach and manage employees who are going through it.

 

Business budgets could factor in the effect of menopause on the workforce in the same way that pregnancy and maternity are treated currently e.g. budget for some time off or part time working (and recruitment of cover if necessary), providing medical insurance that has provision for menopause related sessions and also provision for making reasonable adjustments.  This is dealt with in more detail below. 

 

As part of diversity-aware recruitment and retention it would be valuable to seek understanding from the individuals affected regarding what would make a workplace attractive for women experiencing menopause. It is suggested that practical adjustments would be welcome alongside a more holistic support such as counselling or a safe space in which to discuss experiences.

 

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

 

We suggest a preventative approach including training and education about menopause and the effects, alongside creating a culture whereby individuals experiencing the menopause feel safe and confident to talk to HR or to their managers.

 

A business’ response to discrimination relating to menopause should be just as robust as for any other form of discrimination, to show support for the victim and also that the employer is taking the issue seriously.

 

We recommend drafting a menopause policy as a formalised way of acknowledging the issue, and also to provide guidance for employees and managers about how to deal with problems that arise from it.  The menopause policy may well not contain all of the answers but should provide as much guidance as possible and refer to other policies that are relevant such as flexible working or dignity at work.

 

We suggest that sick leave for menopause related reasons is treated with care in terms of Bradford factors and the requisite reasonable adjustments are made.

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

 

This is an especially sensitive point because it may be affecting individuals in a way that it not at all obvious and may be more challenging for them to share

 

Language is important here. It is a particular challenge if an organisation presents the menopause solely as a “women’s issue”.  With this in mind, we suggest using more inclusive language regarding gender, for example, “individuals experiencing menopausal symptoms” instead of “menopausal women”. Alternatively, a note could be added at the top of communications/policy documents etc., explicitly recognising that not everyone who experiences menopausal symptoms may be a woman, and the policy (etc.) is inclusive of all gender identities.

 

Employers should also consider any internal training or other resources are mindful of different gender identities.

 

Extra caution should be given in terms of confidentiality regarding information provided to employers, especially if the individual is transitioning at the same time as experiencing symptoms or has already transitionedIn particular, employers should be aware of s.22 Gender Recognition Act 2004.

 

Like with female employees, consideration should be given to practical points such as ensuring trans and non-binary menopausal individuals have adequate access to bathroom facilities.

 

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

Should current legislation be amended?

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?

 

 

We are aware that successful Employment Tribunal claims have been brought regarding the effects of the menopause. However, our view is that the current law on discrimination does not provide a clear or reliable way for employees to bring such claims. This is borne out in the fact that we are aware that other similar claims have failed.

 

At present, we consider there are three possible routes to bring a discrimination claim concerning the menopause under the Equality Act 2010:

  1. As a claim of disability discrimination;
  2. As a claim of sex discrimination; and/or
  3. As a claim of age discrimination.

 

Disability

Where the symptoms relating to the menopause are severe enough to amount to a disability for the purposes of the Equality Act 2010, employees may bring (and have brought) claims for various forms of discrimination. From a legal point of view, this appears to work successfully. However, it is of course dependent on the symptoms being severe enough to make out the test relating to disability.

 

Furthermore, this route perhaps does not effectively address issues which may arise due to more general bias against people perceived to be menopausal, which is not related to any physical or mental symptoms. Finally, we find it unattractive that employees should be required to formulate claims relating to the menopause as claims of discrimination; during our internal discussions, while some employees felt “disability” validated their menopausal symptoms, others stated that they strongly objected to framing their menopause as a “disability”.

 

Age/sex

We discuss age and sex discrimination together, as we consider that similar challenges arise under both approaches. Firstly, we consider that employees could bring a claim for age/sex harassment in relation to the menopause, as (for example) a joke relating to the menopause will very likely relate to age and sex. This test would therefore likely be made out.

 

It is less clear to us that direct or indirect age/sex discrimination claims could be brought relating to the menopause. Regarding direct discrimination claims, the conduct must be because of age or sex. Less favourable treatment done because of the menopause may not clearly be found to have been done because of age/sex, but instead because of the menopause itself. Although we are aware that Tribunals have concluded that this claim has been made out (e.g. Merchant v British Telecommunications PLC), we are not confident that this reasoning would always be followed, given the law as currently drafted.

 

We are also not certain that indirect discrimination claims relating to the menopause could be successfully brought. For such a claim, persons who share a particular characteristic would need to be placed at a particular disadvantage. If we take that characteristic to be age, a practice which disadvantaged menopausal employees would not disadvantage all persons of a particular age because some of those people would not experience menopause (e.g. most men). Likewise, with sex not all women would be at a disadvantage because younger women would tend not to experience menopause. This claim therefore necessarily relies on two separate protected characteristics, i.e. “women of a particular age group”, making it a form of “multiple discrimination”.

 

There was previously a statutory change proposed to the Equality Act 2010 which would have specifically legislated for claims of multiple discrimination. However, this change was not brought in. We therefore do not have certainty regarding whether such claims can be brought (although we have some case law to suggest they can).

 

One option would be to amend the Equality Act 2010 to include menopause as a protected characteristic. This would resolve some of the concerns we have mentioned, without requiring reconsideration of the multiple discrimination issue.

 

We consider it likely that this change would have an overall positive impact. Employees who bring discrimination claims relating to menopause are likely to do so at present via one of the routes set out above, or most likely via a combination of them. This will lead to additional work for Tribunals, who will have to address additional claims (e.g. disability, age, and sex) whereas one claim (menopause) could suffice if the new protected characteristic were introduced.

 

No changes to the law are required to enable employers to put in place a policy.

 

 

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?

 

We understand that only 41% of medical schools have menopause on the curriculum and as a result this can significantly affect GPs’ abilities to diagnose the symptoms.  Education and raising awareness are key to better understanding and fair treatment – across the board.

 

Training and education are needed for employment judges to try and avoid decisions made as a result of misunderstanding and prejudice.  Judgments vary greatly in menopause-related claims, with evidence of a female judge and a male judge addressing issues with very different levels of empathy.

Less than two years ago a case heard by a male judge (Ms M Rooney v Leicester City Council [2019]) said that because she could look after her young children, disabled husband and ill mother, her menopause symptoms were trivial and did not amount to a disability; and that because the Claimant had managed to keep caring for her whole family that her impairment was “trivial”.

By contrast, a case heard in August last year (Miss J Donnachie v Telent Technology Services Ltd [2020]), heard by a female judge, appeared to give much more time to the impact of “typical” menopause symptoms. 

On this point, we note that the Equality Treatment Bench Book does not currently provide much helpful guidance relating to menopause and its effects.

 

We feel that it would also be helpful to ensure a greater diversity of judges in terms of gender balance. 

 

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

 

We did not know about this.  Most of the sources that provide information and guidance are set by charities, interested individuals and the media rather than government websites.

 

The menopause seems to have got traction very recently and has our attention as well as the attention of many of our clients.

 

September  2021