Guidance from the Equality and Human Rights Commission (EHRC) has clarified employers’ legal obligations towards women experiencing menopausal symptoms that may be interfering with their work. This isn’t new law. Rather, the guidance has reiterated and elevated existing legislation, bringing greater awareness of the protections in place for menopausal women in the workplace. In the past, if women wanted to make discrimination claims because of menopause, they could only do this by making a claim for menopause being a disability. This is still the case.
Generally I think the new guidance is a welcome move. I’m happy to see efforts to generate greater awareness around menopause and that women will be supported more and also protected. I’m pleased that employment law does enable women to push back against unfavourable treatment and that more and more organisations are putting in place a menopause policy.
However, I struggle with any association made between menopause and disability, because I consider menopause to be a natural stage of life and even when women have severe menopause symptoms, I don’t think that pushes them towards disability. But before I talk more about that, first let’s take a look at what exactly the EHRC has said.
Employers legal obligations are set out thus:
If menopause symptoms have a long term and substantial impact on a woman’s ability to carry out normal day-to-day activities, these symptoms could be considered a disability. If menopause symptoms amount to a disability, an employer will be under a legal obligation to make reasonable adjustments. They will also be under a legal obligation to not directly or indirectly discriminate because of the disability or subject the woman to discrimination arising from disability.
Under health and safety legislation, employers also have a legal obligation to conduct an assessment of their workplace risks.”
The reasonable adjustments to working conditions that the EHRC recommends for menopausal employees are better ventilation and cooling devices to accommodate hot flushes for example, the provision of quiet rooms and relaxing uniform policies or allowing women to wear cooler clothing if needed. The guidance also recommends facilitating flexible working and changing shift patterns, for example, to accommodate women experiencing symptoms of menopause, such as difficulty sleeping, hot flashes and brain fog.
If employers fail to make these accommodations, they could potentially be sued under disability legislation. The guidance also sets out how taking disciplinary action because of menopause-related absence could be unlawful discrimination unless it is justified. Similarly, using language that ridicules a worker in relation to their menopausal symptoms could be considered harassment on the basis of age, sex, or disability. This last point, I love!
This all seems to be good news and it’s important to get more guidance on best practices. Just being able to wear natural fabrics and not synthetics can make a radical change to a menopausal woman’s comfort levels at work. But she also needs multiple sets of uniform to accommodate frequent changes and especially in case she suffers from menstrual flooding during her menopause transition.
These are all important ways to accommodate women at work. We also need to think about toilet facilities which are often woefully inadequate. If a woman is flooding during menopause and she has no access to a wash basin in the toilet stall, how can she possibly take care of herself in the workplace. It’s important that employers also provide toilet facilities that enable women to practice good personal hygiene without making any embarrassing issues obvious to everybody at work!
It’s interesting to consider that pregnancy is a protected characteristic but menopause is not. The guidance talks about harassment or discrimination on the basis of age, sex, or disability, but women cannot currently bring a claim for discrimination on the basis of two of these protected characteristics, only one. I believe that is why, in the past, when anybody wanted to make a claim in connection with menopause, it had to be done on the basis of disability. But pregnancy isn’t a disability and neither is puberty. Why does menopause take us into disability territory?
Is a menopausal woman a disabled person? The guidance talks in terms of when there are long-term severe symptoms that can impact a woman’s work, the symptoms could then be considered a disability. So, technically, it’s not menopause itself that is the disability, rather it is the menopause symptoms, if they are severe. But is this just semantics? It still puts menopause in the disability camp, I think. It still seems to me, to be an unfortunate use of terminology.
Natural hormonal changes are something that happen to all women in midlife, and I believe with more knowledge, support and understanding, most women should be able to transition through this period without having to call on the disabilities act. If, in fact, we were able to call on two protected characteristics to make a claim, then menopause would fit neatly in age and sex. We go through menopause because we are older and female.
Another element of the guidance is that menopause-related leave needs to be classified as menopause-related leave. This strikes me as a very grey area. How are women and managers to classify what is related to menopause and what isn’t? Will a doctors note and medical evidence be needed? There is no test for natural menopause, unlike for pregnancy.
If a woman is suffering from sleepless nights, that could be menopause-related or it could be stress related to life in general. There can be so much going on in a midlife woman’s life! She may be grappling with an empty nest, she may be stuck in the sandwich generation, caring for children and elderly parents, she may be experiencing her first real dose of gendered ageism, which could be knocking her confidence even further.
If a woman suffers from joint pain, how do we know that is specifically menopause and not another reason? Do we look at the average age of menopause and if the employee fits that profile, then we put everything down to menopause? There is much disagreement about what exactly is caused by menopause and the extent to which it has a significant impact on women. And every woman has a different menopause.
Could menopause now be used as an excuse for poor performance standards with employers fearful to say anything in case they get sued? What time period will be used to accommodate women needing support during the menopause transition? We know all women have their own individual experience and deserve to be accommodated on a case-by-case basis. There is no one-size-fits-all, but it does make it all quite complicated. But menopause and women’s health in general is complicated. We need to work with that.
There are certainly positive steps being taken to support women at work and hopefully improve the employment rates of older women, so they don’t feel the workplace no longer works for them. If women are leaving work because it can’t support and accommodate them during their menopause, that’s not a good thing! We need to ensure we keep older women at work – society needs them!
But it’s not just about ticking the menopause box either. It’s also about considering the impact of age discrimination and sex discrimination, and how we can also tackle those. Both have a big impact on how women experience menopause, as well as just being an older woman in general. There’s lots more to be done to combat the often unfair treatment of older women at work, and stop the need for any woman to attend an employment tribunal!
You can hear me talking about the new menopause guidance on Times Radio.
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