Despite the Davina effect, those suffering from the menopause have suffered two blows from the government.  First the rejection of a trial for menopause leave in England and second not recognising the menopause as a “protected characteristic” for which a person shouldn’t be discriminated.

Melanie Stancliffe, Partner in the Employment team at Cripps provides some insight into why that decision was made and what more is needed to support employees through the menopause

Both decisions fly in the face of addressing staff shortages and keeping talent in work. The Women and Equalities Committee heard evidence of dismissal and resignations due to debilitating symptoms.  There was no compunction to take part in the trial but it was an opportunity to avert these losses, adapt the working environment and support employees through a natural phase of life.

The reasons given are that trialling leave for the menopause could disadvantage men.  In fact, menopause and its symptoms affect women, trans-men and non-binary employees.  The trial was also voluntary so employers did not have to participate but could have explored what worked and what doesn’t.

Employment law’s purpose is to protect those who are more vulnerable from poor treatment –  zero-hour contract workers, the pregnant employee or night worker.  It levels the playing field by recognising someone treated unfavourably or dismissed because of a “protected characteristic” deserves protection.

We have trialled 4-day working weeks to see if that increases productivity and wellbeing.  The same aims apply to menopause leave.  And now the option is for organisations to be proactive and test their own schemes to accommodate their staff’s needs.  Those that do will be more attractive to candidates, improve retention of staff suffering symptoms and enable their people to continue their careers.  This isn’t altruism or being “woke” – it’s good business sense in a knowledge economy which has skills shortages, high turnover and insufficient diversity at senior levels.

Approaching the publication of the pay gap between men and women in April, many HRs and senior management will identify the lack of women in their pipeline.  Supporting employees is a credible strategy when a significant part of your working population will go through this stage of life.

Although menopause is not a “protected characteristic”, an employee can still bring a claim of discrimination because of their symptoms (a possible disability), age or gender.  Imposing a warning on an employee struggling to start work on time due to poor sleep and night sweats, creates the risk of a discrimination claim.  The decisions of the Employment Tribunals include:-

• an employer had direct discriminated against the employee in not considering whether menopausal symptoms were the reason for the employee’s poor performance. It considered that other medical illnesses would have been taken into consideration.
• It was gender and age discrimination for a manager to shout at the top his voice that the then 52 year old “must be in her menopause” (Best v Embark on Raw Ltd 2020) and
• An employer should consider the work and non-work tasks their employee could not do because of their menopause symptoms, not what she could do, when deciding if they are disabled and adjustments needed to be made (Rooney v Leicester City Council 2021).

These cases show the increasing tendency for employees to be protected and the need for employers to look carefully at the reasons for their staff’s behaviour and make reasonable adjustments.  Many employees will take medical advice about their symptoms but feel unable to talk to their line manager who could benefit from the insight into what they are facing and how they can help.

What steps should an employer take to support employees?

1. Raise awareness – Ensure the guidance for employees and team leads is readily accessible. Sign up to the Wellbeing Workplace Pledge, provide online support, drop-in sessions and links to information.
2. Create a “safe space” for employees to talk openly and respectfully about how they feel if they are struggling at work, for any reason. Consider having a “menopause champion” as a liaison between employees and managers to facilitate discussing any adjustments needed.
3. Train managers–to understand the impact the menopause can have and adjustments that may help (e.g. later start times, regular breaks, fans, variable air conditioning settings).Upskill leaders how to access support in your organisation and not to ignore behavioural changes.
4. Flex your absence management –symptoms can vary and fluctuate throughout an employee’s menopause. Sickness absence procedures should make it clear how menopause-related sickness absence is treated and build in the ability to extend paid and unpaid sick leave.
5. Implement a menopause policy –setting out suggested language for team leads’ use, the support and resources available and the people employees can speak to in confidence will assist.

At Cripps, we understand the impact the menopause can have on employees and employers. Please feel free to contact a member of the Employment Team should you need advice or assistance in producing information and policies.