Partner at Crossland Employment Solicitors, HR business advisor
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World menopause awareness month
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Best practice for supporting employees during menopause

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As part of World Menopause Awareness Month, Maria Hoeritzauer examines the legal implications of employees going through the menopause and advises on best practise to support them.

20th Oct 2021
Partner at Crossland Employment Solicitors, HR business advisor
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50% of employees working today will experience the menopause. As a key part of the workforce, the main task for employers is to support these employees while also ensuring that any work they are employed to carry out is performed to the required standard. 

Supporting employees during this time should pay dividends but there are potential pitfalls too that HR professionals need to avoid

Identifying those affected

The majority of women will experience the menopause as well as some individuals who do not identify as women, such as those who are transmen, non-binary or intersex. Businesses should therefore use sensitive and inclusive language both in practice and in policies. 

While the perimenopause and menopause typically occur between 45 and 55 years of age, the timing and duration will vary considerably between individuals. Some will experience significant symptoms, others will experience it at an earlier age, while a small proportion may have little or no symptoms. 

If the individual’s manager says they are too young to be experiencing the menopause, or tells a woman her behaviour must be ‘due to the change’, that could constitute harassment.

How does it affect the workplace?

Even if staff experiencing the menopause do not have any symptoms, it could still affect the workplace if those individuals are treated differently because of preconceptions about what it means. 

For example, if the individual’s manager says they are too young to be experiencing the menopause, or tells a woman her behaviour must be ‘due to the change’, that could constitute harassment on grounds of age and/or sex. It also is likely to result in grievances against that manager and undermine staff morale. 

If an employee is experiencing severe symptoms, for example, depression or fatigue, they might be absent more often. That in turn may be treated as a capability process and sensitive discussions about the causes need to be explored, without making assumptions, but with the individual being given every opportunity to mention the menopause. 

If an employee is the subject of comments from colleagues, even if they are meant in jest, for example, they are too young to have the menopause, this could constitute harassment.

What are the key legal implications to consider?

If the individual believes their colleagues and/or employers’ behaviour or actions made it impossible for them to continue in their job, they could leave and claim constructive dismissal. 

They would need to show that the employer has fundamentally breached the contract of employment and even if not successful, the employer will incur management time and legal costs in defending itself. 

Also, any employment tribunal is a public forum and all judgments are published online, so anyone (including prospective employees, investors, media entities) can access it. 

If the individual is actually dismissed, they could potentially claim unfair dismissal, and possibly age, sex and/or disability discrimination. Employers need to be cautious of actions that could constitute direct or indirect discrimination because of age and/or sex, or which amounts to harassment or victimisation. 

If an employee is the subject of comments from colleagues, even if they are meant in jest, for example, they are too young to have the menopause, this could constitute harassment.

The menopause could also be a disability and there have been successful tribunal proceedings on this point. A disability is a condition that lasts or is likely to last for 12 months or more and has a substantial and adverse effect on an individual’s ability to carry out their day to day activities. 

Disability triggers a duty to make reasonable adjustments, and the individual is legally protected from unfavourable treatment because of or arising from that disability. So if poor attendance is disability-related, adjustments to the trigger dates should be considered.

A business can also have inferred knowledge of the condition if, for example, the manager knows the individual is on HRT medication.  

Even if their departure does not result in a tribunal claim, a risk to employers is the loss of morale and good staff. Recruiting, training and retaining a good employee is costly and time-consuming. There are also potential reputational issues from public platforms such as GlassDoor. 

What does best practice look like and what can you do?

Employers should consider the following which reflects best practices:

Policies 

Are there systems in place which encourage open dialogue between employees and their managers, or the HR team if the individual feels the matter is particularly sensitive? If not, consider implementing a policy or perhaps creating an area on your intranet signposting staff to resources such as your employee assistance programme, relevant charities or information hubs externally. 

More employers are considering menopause specific policies but some businesses prefer to include it within a general wellbeing policy that applies to all staff regardless of how they identify, where they are located or what role they perform. 

Working arrangements 

Assess what happens currently with existing staff and what has been requested (if anything) previously. Are there recurring requests, for example, easier access to drinking water or fans? Do staff wear a uniform that may not be pleasant during a hot flush and which could be reviewed when designing the next uniform?

Identify what might make working life generally easier or more pleasant such as drinking water and toilet breaks, workplace temperature, or time spent in the car travelling.

Training and communication

These steps should be combined with training for all staff, but particularly managers who need to understand when to ask for HR support, what they need to be aware of, and what they should (and should not!) do to support their colleagues. Encourage an open dialogue between employees and their managers.

Finally, if an employee is going through formal capability or disciplinary processes and mentions that they are experiencing menopause symptoms, then take time to discuss these with them. If they are being affected in particular ways which in turn have resulted in the current process, consider if adjustments could be made to reflect this. 

The more awareness of this very private and personal condition and the more encouragement of open dialogue between employee and employer, then the easier it will be to highlight menopause issues at an early stage and make adjustments. This will lead to happier employees and reduce the risk of claims.

Interested in this topic? Read Bridging the gap: Supporting menopausal women in the workplace

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