A current focus in employment law is the menopause and its impact on the working lives of female employees. David Morgan looks at the existing law and potential developments.
The menopause has been a focus for employment lawyers in recent months following parliamentary scrutiny of the impact of the menopause on working women. In July 2010 Caroline Nokes, the Chair of the Parliamentary Women and Equalities Committee, launched an enquiry into menopause and the workplace. When doing so she highlighted that 3 in 5 women are negatively affected at work by the menopause but that the issue is largely unaddressed by legislation. She announced that it was time to “uncover and address this huge issue”.
The launch of the enquiry coincided with the reading of a private member’s Bill in the House of Commons – the Menopause (Support and Services) Bill, which includes a requirement that the Government considers its strategy with regard to workplace policies and adaptations to the working environment which will support women to work through the menopause. The motivation behind this Bill is that not enough is being done to support women at this stage of their life.
As matters stand, while characteristics such as age, sex and disability are protected against discrimination under the Equality Act, there is no specific protection for women going through the menopause. Nor is the menopause something that that is commonly addressed in employers’ policies. Employment lawyers are not typically instructed to draft or review policies which specifically address the menopause.
In some cases women have been successful in bringing claims against employers under existing legislation when they have suffered unfair treatment as a result of their menopause. In the case of Merchant v BT plc, a tribunal held that the Claimant had suffered from unfair dismissal and sex discrimination when she was dismissed for poor performance without the impact of her menopause symptoms being investigated.
In Davis v Scottish Courts and Tribunals Service there was a finding that the employee’s menopause symptoms were sufficiently severe that they constituted a disability for the purposes of the Equality Act and that she had suffered from disability discrimination when she was dismissed because of an incident caused by the confusion and stress arising from her disability. More recently, in A v Bonmarche Ltd a woman was found to have suffered sex and age discrimination after her employer refused to discuss or provide support for her menopause symptoms and subjected her to a hostile environment at work.
It remains to be seen whether the Government proposes new legislation in response to the findings of the Parliamentary enquiry. Regardless of this, the next few years are likely to see this issue coming into greater focus for employers, which will be a positive step for female employees experiencing the symptoms of the menopause which impact on their work.
For further legal advice on this and other employment law issues, please contact David Morgan or a member of the employment law team,.