It has been a welcome feature of workplace progression that the impact and effects of the menopause have become something employers are now much more aware of, with steps (albeit perhaps slowly) being introduced in many workplaces to support affected staff.
While this is an issue of significance in virtually every workplace, it is - given the overwhelming majority of female teachers and other staff - of particular importance in the education sector.
Many employers are taking proactive steps, and this is underpinned not only by an employee-relations and welfare incentive, but also by legal duties. This legal responsibility and protection is now starting to be analysed in employment tribunal cases, and it’s useful to look at some of these, as well as the relevant legislation, to consider the nature and extent of legal obligations on employers and protection for employees.
The primary legal protection will likely be under the Equality Act 2010 (EA), the legislation that protects employees against discrimination in the workplace. While the menopause is not, in itself, a named protected characteristic in the EA, there are several protected characteristics that could be applicable, depending on the factual circumstances. These include age, disability, gender reassignment and sex.
So far, the claims we’ve seen in the employment tribunals have primarily been based on disability discrimination. This is on the basis that the symptoms of the menopause (whether cognitive, physical or psychological) amount to a disability under the EA, in that they amount to a substantial and long-term (which means lasting, or likely to last, 12 months) adverse effect on the employee’s ability to carry out their day-to-day activities.
Given that menopause symptoms listed online by the NHS are many and varied - including problems with memory and concentration, mood changes, joint stiffness, and urinary tract infections - it is clear that such symptoms could amount to a protected condition under the EA.
This has been confirmed at appellate judicial level, with a case in late 2021 (Rooney v Leicester City Council) outlining that an employment tribunal had failed to properly carry out the factual analysis required to determine disability status, with there being no reason as to why menopause symptoms could, in theory, not amount to a disability. Several other cases have upheld disability status.
If an employee is a disabled person, then they gain protection against multiple different types of discrimination - including harassment, which can include acts of other employees, such as derogatory comments. It also puts the positive duty to make reasonable adjustments on the employer. This is key, because it could require amendments to the workplace or working practices. While this could be as simple as providing better ventilation, it could also include flexible working arrangements or changes to duties or role.
Should an employer be found to have discriminated against an employee, there are a variety of remedies, including compensatory (including for injury to feelings and financial loss) and recommendatory, with an employment tribunal judgment capable of stating what the tribunal feels an employer must do to remedy the discriminatory situation. With such judgments being matters of public record, adverse findings can be damaging to reputation in addition to being costly financially.
It’s also worth noting that claims under the EA allow individuals to be named as respondents in addition to the employer - this means that employees can be personally liable for acts of discrimination.
These underpinning legal protections highlight that, as the conversation around the menopause and its effects becomes more open and transparent, the responsibility on employers to support women going through the menopause will grow. The House of Commons Women and Equalities Committee has, in February of this year, released the result of its menopause and the workplace survey. A standout finding was that only 8 per cent of those who had experienced menopause symptoms stated that these did not affect their work.
Ultimately, this is an area in which the legal protection for employees will only increase, whether that is through new legislation, the amending of existing legislation, or the application of case law establishing the legal principles. Fundamentally, responsible employers should aim to be at the vanguard of progress - and local authorities must have due regard to their public sector equality duty to eliminate discrimination and advance equality.
It should be a last resort for employees to have to rely on legal protection to bring issues to their employer’s attention and receive the requisite support. Creating an environment, through policies, practices and training, which encourages those affected to talk about the issues and seek support should be paramount. There is an increasing amount of guidance available, including from the Acas - the advice service for employees and employers - to educate and help with this process. Hopefully, the progress that has been made to date is just the start.
Scott Milligan is a partner, and Deborah Rookes a senior solicitor, at Scottish law firm Harper Macleod. Both advise clients in the private, public and third sectors on a wide range of employment law issues
