What is the menopause guidance and what factors should employers consider when developing a menopause policy?

Posted in : Seamus Says - Employment Law Discussion on 2 July 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Sex Discrimination, Menopause, Menopause Guidance

So I think if we start off with the menopause guidance, for those of you who haven't seen it, it's an absolutely fabulous document. We will be sending you a link to it. But do give it a read. It's produced by the Labour Relations Agency, the Equality Commission NI, and the Irish Congress of Trade Unions. It really is a really useful document. It's short and to the point. It's about 10 pages, but it covers everything. I think it's fantastic, a really good read. We're lucky enough to have Helen here today who worked on the guidance. So very welcome, Helen.

Helen: Thank you.

Christine: Helen, can I ask why has the guidance come about?

Helen: Well, Christine, with women making up nearly half of the working population in Northern Ireland and with change in pension age, it's likely that more women will be working later into life. So, employers need to consider how they can support women in the workplace when their menopause happens.

Now, this new guidance produced, as you say, in partnership with the Equality Commission for Northern Ireland and the Irish Congress of Trade Unions is mainly directed at employers to help employees experiencing the menopause through what can be a difficult time.

The guidance contains some areas, which I'm just going to very briefly outline. There's a link to the results of the 2018 survey, which I alluded to after the poll this morning, which was conducted by the Irish Congress of Trade Unions. There is a useful checklist there to enable employers to assess the extent to which their current policies and procedures meet the needs of women with menopausal symptoms. There are some case law decisions, which I know Seamus will pick up on in a little bit more detail, and a couple of great practice examples from Northern Ireland employers.

I have to say that the reaction of employers and HR practitioners to date following the launch of this guidance has really shown us that there's real appetite to learn about this, de-stigmatise the menopause discussion, and change workplace practices so that women going through the menopause can be accommodated. So that in itself is really positive.

Christine: Yeah, I think there's been a big change in people's ability to talk about it, and it is kind of being driven by celebrities. As Seamus said, Marie-Louise Connolly's comments. I thought there was a fantastic documentary by Davina McCall on Channel 4 about a month ago. And then you had mentioned the one show was talking about it last night. So, it seems the taboo has kind of been broken about, which is fantastic.

Helen, why should employers consider menopause in the workplace? Why is it important for them to do that?

Helen: This is about more than complying with the law, Christine. I suppose from an employer's point of view, you'll already understand the importance of listening to your employees and understanding and seeking to accommodate their needs and experiences and priorities.

Employers should provide practical support and create, I suppose, an open culture for those experiencing symptoms. And this is likely to result in staff loyalty, less absenteeism, better motivation and productivity.

I suppose for those employees considering leaving work because of the severity of symptoms, there's a huge risk for the business in terms of loss of talent, knowledge, and experience.

I suppose one of the difficulties with managing menopause at work is that whilst most women experience it between the ages of 45 and 55, the menopause can happen much earlier for some women.

There's also a range of symptoms and wide variations of women's experiences. That doesn't mean that employers have to be experts in women's health issues. It just means that there needs to be a policy in place, training and support in how to help women, and how and when to implement it.

Christine: Yeah. I've actually got a good question here, Helen, from a listener. So, does the policy or do you advise that any in-house policy should cover menopause and perimenopause? Do you think it would include both?

Helen: It can do. Some employers may not need to develop a specific menopause policy if you have a commitment to support women through the menopause and other policies. For an example, an equality policy, a harassment policy, and a reasonable adjustment policy.

But at the end of the day, you need to make it clear that if an employee needs to talk about menopause, they will be listened to and taken seriously.

Christine: Yeah. And what are those kinds of practical steps that an employer could take on the day-to-day basis to help employees?

Helen: Again, this is to all employers, both large and small. You may find that a few simple changes to the working environment can make a huge difference. And by that, I would suggest that it may be needed just to help an employee get through a difficult patch. And that may be as simple as a seat by a window, an extra uniform or a particular piece of clothing of a corporate uniform, access to cold water, or a fan on her desk.

Christine: Yeah. Brilliant. Thank you very much for that. I know you've been talking about the practicalities and the moral side of this, but are there any legal duties imposed on employers in relation to menopause in the workplace?

Helen: Well, employers have a duty of care to ensure the health, safety, and welfare at work of employees and make workplaces suitable for individuals who work in them. So, risk assessments should be carried out and action taken to prevent exposure to risks.

And when carrying out risk assessments, as a matter of course, employers should look at issues such as temperature and ventilation, the materials used in any uniform or corporate clothing, again, access to cold drinking water, and access to toilet facilities. But in terms of making adjustments, those should always be tailored to an individual's specific needs.

Christine: Brilliant. Thanks very much, Helen.

I think the tail end of specific needs really brings us quite neatly into . . . the back of the guidance has as a few key cases, and one that I found particularly interesting was the Merchant v BT case. And in that, a manager is confronted with someone under-performing who was saying menopausal symptoms were contributing to that. He decided his best approach was to look at his wife's menopausal symptoms and decide whether the employee was justified or not.

Unsurprisingly, the tribunal didn't take too kindly to that, and it was held that BT had directly discriminated against that particular employee on the basis of her sex. They did investigate further non-female-related conditions. So, I think that really goes down to, "Let's treat everyone like individuals. We can't just make assumptions about a big group of people".

I know, Seamus, you have some insights into the other bits of case law at the back of the guidance there.

Seamus: Well, just in relation to the Merchant case, by way of background, this was a situation where the claimant, Mrs Merchant, was dismissed from her employment on the basis that she had already received previous warnings and she had a final written warning in relation to her performance at work.

What she had done was she had approached her manager and had said that she was having . . . as Helen put it very well there, it was a difficult patch in relation to her work, and that was down to the fact that she was going through the menopause, and specifically she said about it affecting her concentration levels and things like that.

I suppose if we break it down very simply there, Christine, just in relation to what . . . the interesting point in the case is around the manager saying, "Well, look, I looked at my wife's situation and talked about that". But you really wouldn't take those steps in relation to if you had a member of your family with a certain disability and somebody else in your workplace had that disability. You wouldn't compare the two. It wouldn't be an appropriate comparison to make.

Individuals need to be treated individually when it comes to these matters. They're affected differently and they have different outcomes for people. So, it's important from an employer's perspective that the employee just isn't left to feel that they are being put into one box and treated in that way.

I thought it was interesting as well that within the guidance, it did talk about the inclusivity, a welcome working environment, understanding the employees' needs, how they are affected. Just that aspect of when people are included, the rewards of that are you do tend to get . . . and the guidance specifically talks about greater staff loyalty, lower rates of absenteeism, and higher rates of productivity. So it does come back to those important issues.

But there is the Merchant case. I struggled. A client of mine contacted me and wanted sight of the case, and I did struggle to find it. But I managed to get a copy of it. I can pass that on to you at Legal Island. You can maybe send a link up in relation to it, because it is an interesting read.

The guidance also talks about a 2008 case of Mrs Davies against the Scottish Courts and Tribunal Service. And specifically, whenever we're looking at menopause, the issue that could arise around equality and discrimination would be on the basis of gender, disability, and age. Those would be the three main heads that I would see issues arising.

And this one specifically in the Davies case was around disability discrimination. The finding was that . . . and certainly you would not say that every woman or every person that suffers . . . well, not suffers. But everyone that is going through the menopause are suffering from a disability. That wouldn't be correct. But in this case, they said that if the symptoms are sufficiently long-term and substantial, it could be deemed to fall within the term of disability. And that's always subject to medical advice might say and what one tribunal finds.

There was a more recent 2020 case of A v Bonmarche Ltd. This was an anonymised case. And again, I think it's important to think around the sensitivities of these cases and, again, the sensitivities and working. We hope that the bringing to light of these issues will lessen that.

But this was about comments being made in work in relation to menopause and a view that those comments could result in harassment on the grounds of sex and age.

So, we know over the webinars that we've done that we can see that there has been a general expansion of equality laws, and certainly the manner in which the tribunals and the courts are considering it, it is broadening. And this is one that we certainly help to be alive to.

Christine: Yeah. I think the take home points from those cases are "Don't treat menopause as a taboo subject". Maybe if that male manager had been less embarrassed, he would have actually consulted his employee about her symptoms. "Treat people as individuals" is a big take home as well. And it just needs to be something that's talked about.

But in summary, this guidance is a fantastic guide. Please do have a read of it. We will send you the link to it. There's some good practice guidance at the back. We've got some links to the PSNI's approach to the menopause in their organisation, and also one of the Belfast Trust's as well. So, it is really worth a read, and I highly recommend it.


This article is correct at 02/07/2021

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Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

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