EHRC menopause guidance highlights need for a supportive environment

As we highlighted last week, the Equality and Humans Rights Commission has published new guidance for employers on menopause in the workplace designed to help employers understand their legal obligations in relation to supporting workers experiencing menopausal symptoms. As you may have noticed, this is a subject which has attracted a lot of media attention and political interest as the number of women of menopausal age has grown and, as the data clearly shows, they often choose to reduce their working hours or leave the workplace entirely because of the severity of their menopause symptoms and a lack of support from their employer.   

In addition to the guidance itself, the Commission has produced three videos. They cover: (i) Menopause and the Equality Act 2010; (ii) Making workplace adjustments and preventing discrimination; and (iii) Conversations about the menopause. 

The third one, conversations about the menopause, is useful because it highlights an issue which is not given enough attention, in our view. So, managers will tell us that they would have been happy to provide more support for the individual but they were simply not aware of the issue as it had not been raised with them. So, let’s consider let’s consider that. Earlier Trish Embley joined my by video-link from Birmingham to discuss it. I put it to Trish that a lack of awareness of the issue is a problem:

Trish Embley: “It is a problem, it’s a real problem, and I think what we're finding is that this issue is being picked up particularly in performance management conversations because we know one of the quite severe symptoms of the menopause can be lack of concentration, brain fog, an increase in making errors, and so it's likely that that could trip on. So, I guess the problem for managers is they don't know what they don't know and the problem for the individual employees is some people would be more comfortable than others talking about this while, for others, they might be mortified at the thought of having to share this information with their manager - they wouldn't be sure how sympathetic a reception they would get. So, really, what that brings us on to is almost taking a step back and looking at organisational culture and whether it's the organisation itself, or that individual manager, and asking have they created an environment where an individual would be comfortable to have that sort of discussion, and to disclose that sort of information?”

Joe Glavina: “What reasonable adjustments might help in these situations, Trish?” 

Trish Embley: “Well, in terms of reasonable adjustments, I think the important thing we've got to remember is, like any other disability, the duty to make reasonable adjustments is to remove the disadvantage that is causing the person to suffer at work, or struggle at work. What the legal duty to make reasonable adjustments does not say is you have to drop your standards. So, as in any other case, it's not a case of saying, oh, we're very sympathetic, you have got brain fog, you're making a lot of errors, that's okay, we'll make allowances. Instead, it's saying, well, how can we support you? Or how can we work with you so that doesn't happen? I think it's one of those areas where there's some dual responsibility because if it was another condition there might be some equipment, or software, that an employer could install to stop errors. However, with the menopause, yes, I think the employer can support in terms of allowing people to have breaks to help with that confusion, or brain fog, to look at the temperature - you know, might be exacerbated by extremes of temperature or hot flushes - but, of course, the employee themselves may have to be part of the solution. So, there are things like HRT and other actions where I think really we have to outsource this to the health professionals to help us with to say, you know, what can this employee do? What can we do? That's the essence of it really. Whenever you're putting together an action plan, base it on medical input, but I guess the point I'm making is it's medical input as to what can we do, and what can the employee do, to mitigate the chances of there being this confusion, errors, etcetera?”

Joe Glavina: “The guidance makes clear that although menopause is not a protected characteristic in its own right, nonetheless a woman can frame a claim relying on one of the current nine protected characteristics. Can you talk me though how that might work?” 

Trish Embley: “So the three main claims that could arise are sex discrimination, age discrimination, or disability discrimination. So, to give you an example of sex discrimination, there are reported cases where a woman has been treated less favourably than, say, a man. So, going back to performance conversations, a tribunal will accept that if, for example, a man had a health condition that impacted on their performance, certain allowances would have been made about that, or it would have been factored in, but it wasn't in the case of the menopause. There are some quite shocking cases where women are told, oh, get on with it, everyone goes through it, you're using it as an excuse – clear sex  discrimination. There have also been cases where women have been harassed, and ridiculed, in a way that relates to their age. So, you're a woman of a certain age, and jokes are being made about hot flushes that wouldn't be made to a younger person. With a disability, we deal with a lot of clients who are currently trying to get that assessment made but then we also deal with clients, and I think this is quite sensible, that don't get too tied up in the definition of disability and move the focus on to look, if it's a disability it's a disability, there's a legal duty, but if we've got someone who is struggling then, from their point of view, and from us wanting all our workforce of whatever age to be productive and supported, let's just focus on the adjustments, let's not get too hung up on whether it's a disability or not, let’s look at what can be done to help them and help their manager to make sure that they've got a productive, and happy, and engaged, and supported member of the team.”

Joe Glavina: “Finally Trish, the guidance specifically mentions training which, ideally, should be rolled out to both line managers and HR professionals. Are clients asking for training in this area and, if so, what does the training look like?”

Trish Embley: “Yes, clients are asking for training this area, particularly, as I say, line manager training because this is tricky. Many line managers have got no experience of this and I think the key thing to remember is everyone's experience of menopause is different. Some people can fly through it, for some people it really is disabling and, therefore, just to raise that awareness is important. Also, there is the oh, it's embarrassing women's problems, getting over that stigma, but also to give the managers some sort of pathway that if they think I suspect this might have something to do with menopause, I don't want to say what can I do? I'm conscious of the fact that this might be awkward for this individual, to give them a way of opening up discussions to say would you be more comfortable talking to a female manager, a female member of HR, and just giving them the wherewithal to be able to confidently deal with the situation that they might not feel comfortable with at the moment. Also, of course, the caution that banter about menopausal symptoms, or making any assumptions, or treating people less favourably, a little bit of awareness about the risks involved in that. So, it's coming at it from both points of view, from that sort of values based inclusive point of view, but also a risk management point of view, and that's why where the training can help.”

The Equality and Human Rights Commission’s guidance on Menopause in the Workplace was published on 22 February. We have included a link to it in the transcript of this programme.

LINKS
- Link to EHRC’s guidance on menopause in the workplace