Menopause jibe was unlawful harassment, tribunal rules

The menopause is not currently a protected characteristic under the Equality Act but nonetheless women are bringing discrimination claims in the employment tribunal and succeeding with them. It’s a sign of the times that these cases are receiving a lot more media attention than in the past - the latest case, brought by sales assistant Leigh Best, has been reported by a number of national newspapers and the BBC. She won an age and sex harassment case after her male boss bellowed at the top of his voice ‘she must be in her menopause' after she made a mistake with an order. 

Menopause is not a protected characteristic and women bringing claims have to argue a case within the framework of the Equality Act 2010, typically using age, disability, or sex as the legal basis for a discrimination claim. In this case, the tribunal ruled the comments amounted to harassment because of Ms Best's age and sex. The tribunal found the owner of the business, David Fletcher, had broached a 'highly sensitive topic' and had acted 'tactlessly'. The case serves as a useful reminder that an employee can bring a harassment claim even for a one-off incident or comment.

The question of whether menopause should be a protected characteristic under the Equality Act was the central issue debated a fortnight ago by the Women and Equalities Committee in the latest stage of the government’s Inquiry into Menopause and the Workplace. The Inquiry is tasked with looking at the extent of discrimination faced by menopausal women and how government policy, and workplace practices, can better support them. It’s an important issue for employers to address because, as the Committee heard, there is a lot of evidence out there showing the women are feeling unsupported and, as a result, are choosing to leave their jobs at significant cost to the businesses concerned. 

A number of witnesses gave evidence to the Committee and, scrolling through the transcript, it’s  notable that the word ‘taboo’ is mentioned several times when explaining employers’ lack of openness and transparency which persists. The health and safety angle is also discussed in some detail. One of the witnesses, employment lawyer and ELA Chair Marian Bloodworth says: ‘There is the Health and Safety at Work Act and then there are two sets of regulations which impose particular duties on them. None of those statutory obligations that I have referred to expressly puts an obligation on them regarding menopause. Whilst they do generally provide safe places of work, I think employers are not necessarily alive to some of the health and safety issues that the menopause can present.’

So, let’s consider those points. Zoe Betts is a health and safety law specialist who joined me by video-link to discuss the issues. I put it to Zoe that it’s a good thing this is now being debated in parliament and covered by the media: 

Zoe Betts: “Well, I think Joe, it's like many subjects that have previously been regarded as taboo, or perhaps too sensitive to discuss. There is a movement in society to thrust these issues into the public domain to try and drive culture change and I think that that is certainly right in the case of menopause. I heard recently somebody comparing the knowledge and understanding of menopause in the workplace to mental health, maybe five or ten years ago. So, it's certainly time to focus on this issue. When you look at the bigger picture the numbers are really quite striking. Working women are the biggest demographic in the workplace, hundreds of thousands of women will be going through the perimenopause or the menopause at the moment and probably suffering in silence. There was a recent survey by the Welsh TUC and they found that over nine out of ten women said that having had direct experience of the menopause it had a negative impact on their working life. There was a different piece of research for World Menopause Month, that was October, that said that a quarter, 25%, of the 2000 women surveyed had left their jobs completely because of their experience of the menopause and many other said that their careers had stalled, or that they'd experienced disciplinary action because of increased sickness absence or even perceived performance issues. So this is having a massive impact, in my view, on talent retention. I think, if we see older women continue to leave the workforce we're going to have a skills gap and we're going to end up with a less diverse and less productive workforce. So, it really is time to have this debate and it's slightly disappointing in my view, that it's taken until 2021 to start it.”

Joe Glavina: “Zoe, you are a health and safety specialist. Why is this a health and safety issue?”

Zoe Betts: “Well, that's a good question and I think a lot of people would ordinarily think that it sits wholly and solely in the realm of HR, but I wouldn't agree with that. I think this issue really straddles HR and H&S and it requires some joined up thinking from employers. Of the women surveyed in that TUC report that I referred to before, they overwhelmingly said that their symptoms were made worse by a poorly adapted workplace environments and a lack of support and proper systems and that cannot be right. Since 1974 in this country we've had health and safety legislation which requires employers, in section 2(1), they have a legal duty to ensure, so far as reasonably practicable, the employee's health, safety and welfare while at work and that section goes even further. That section talks about providing working environments which are, so far as reasonably practicable, safe, without risks to health, and have adequate arrangements and facilities for welfare. So my opinion, and this is what I would tell my clients, that extends to taking reasonable steps to make sure that you have an adequate working environment for women and trans men who are going through the menopause. I think where HR comes in is that really that's looking at the impact that these symptoms could have on somebody's work and their performance at work. So there's a real nexus, there's a real link, between HR and H&S and it would be wrong, in my view, for those professionals not to talk together to come up with some real workable solutions.”

Joe Glavina: “Well, yes, can I ask you about those. So what should employers be doing on a practical level? 

Zoe Betts; “Well, I think as health and safety lawyer I would say this, and it'll come as no surprise, but a lot of it comes down to risk assessment. That is a legal obligation on employers and I think a gender-sensitive risk assessment would consider the specific needs of women in a particular workplace who are going through the menopause. I think it's important to remember that treating men and women as equal doesn't necessarily mean treating them the same. There are clear differences between men and women and menopause is one of them and that needs to be acknowledged and there are reasonable adjustments, and reasonable steps, that an employer could take in the workplace to create a much more supportive and adapted flexible environment. The sort of adjustments that I mean would be adequate ventilation and letting people sit in it open windows, having easy access to cold water, toilets and washing facilities, having adequate breaks and temporary cover in case somebody needs more breaks than normal, and a private place to rest in, access to fans and, of course, there are other genuine and clear health and safety issues. If someone complains of joint pain, you might need to do a manual handling risk assessment. If somebody says that eyes are particularly dry and affected by the menopause, you'd be looking to do a display screen equipment assessment. So these are all things that should captured, in my view , in a relatively simple and straightforward risk assessment. You might also want to consider, because of the psychological impact of the menopause, a stress management risk assessment. I've talked about this before, employers should be aware of this because of the mental health side of things, but menopause plays in, and the HSE has management standards and a wealth of information that employers can look to, but what you have to avoid is an employee suffering detriment because they have to have adjustments to their work pattern or the tasks, their duties, or their performance targets. We've got to consider flexible and homeworking - the pandemic more than anything is proved that that will work. So why not if that would benefit someone who's suffering from debilitating menopause symptoms? We've got to consider looking at our sickness policies. We've got to consider providing information and instruction and training to employees, but also to managers. This is a legal obligation, but it's morally right, it makes perfect sense. Many employers pay a lot of money for occupational health providers and for confidential counselling helplines so use those to your advantage and promote those so that you've got an educated workforce and you've got employees who know where to turn when they need help. I've heard before, and I would advocate this to clients, that some organisations have set up ‘buddies’ and it doesn't necessarily matter whether that's a female or a male body, but I think in this context it probably makes sense to be female, but a champion or someone who's knowledgeable about the issue, receptive, supportive, and is just a port of call if an employee or, indeed, a manager is really struggling with this particular issue. That person can be the place to get some support and get some advice about how to deal with this. Overall, I think my main message is that we have to foster a culture of understanding and encouraging people to be open and to share these issues in a way where they aren't fearing humiliation or ridicule or criticism or disciplinary action. I think that's a bit shameful in this day and age and what we really need is to be encouraging employers to have a well drafted and accessible, readily understandable, policy on the menopause, or guidance documents that people can find and turn to if they need a bit of support in that respect.”

Acas has produced guidance for employers on managing the effects of the menopause and, more recently, in May this year, so has the CIPD. We have put links to both in the transcript of this programme.

LINKS
- Link to Acas guidance on menopause
- Link to CIPD’s guidance on menopause