How does the Equality Act 2010 protect employees when going through the menopause?
Menopause discrimination is largely covered under the protected characteristics of disability, sex and age. Whilst the menopause in itself does not amount to a disability, the symptoms of such can amount to a disability if they are substantial (in other words more than minor or trivial) and have a long term (i.e. they have lasted or are likely to last for 12-months or more) negative effect on the employee’s ability to do normal daily activities. The employer will need to have knowledge or deemed knowledge of the disability. There are four main types of discrimination:
- Direct discrimination is where a person is treated unfairly because of a protected characteristic, e.g. an employer does not carry out further investigation on menopausal symptoms when dealing with performance issues, when it would do for other non-female related conditions. Other than in age discrimination, direct discrimination cannot be objectively justified.
- Indirect discrimination is where a provision, criteria or practice which applies to all employees, but disadvantage a particular group who share a particular characteristic at a disadvantage and an employer cannot show it is a proportionate means of achieving a legitimate aim, e.g. a uniform policy is inconsistent with the need to wear cooling clothes or hiding sweat patches.
- Harassment occurs where an employee is subjected to unwanted conduct which violates her dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment.
- Victimisation occurs where the employee complains about age, disability or sex discrimination and she is treated less favourably as a result.
Further, where the menopause amounts to a disability, failure to make reasonable adjustments could amount to disability discrimination.
What obligations does an employer have to menopausal employees under the Health and Safety at Work Act 1974?
Employers have a legal duty to provide a safe working environment and to carry out a suitable and sufficient assessment of the risks to the health and safety of employees. Risk assessments should consider the specific needs of each employee, and for those experiencing the menopause an employee will need to ensure the working environment does not exacerbate symptoms.
Can I ask for adjustments to my job role, working hours or conditions so I can better manage my menopausal symptoms?
Yes, in most circumstances. Where menopausal symptoms are severe, it is possible that this will amount to a disability under the Equality Act 2010. In these circumstances, an employer will be under a duty to make reasonable adjustments where the employee is placed at a substantial disadvantage because of their disability. Even where the menopause does not amount to a disability, an employer is still under a duty to assess and address any workplace risks and to make any adjustments to lessen the risk that symptoms will worsen. In any event, all employees with at least 26 weeks continuous employment can make a flexible working request.
My employer is not sensitive to the impact the menopause is having on my performance and I’m at the end of my tether. If I feel compelled to resign, can I claim constructive dismissal? Potentially, however whether or not an employee can claim constructive dismissal is very fact sensitive and an employee should seek legal advice before resigning. Further, if an employer has been unfairly treated due to the menopause they may have a claim for discrimination.
Can I claim unfair dismissal if I am dismissed because my performance has dropped due to menopausal symptoms?
Potentially. An employer will need to follow a fair process and consider any adjustments or other support. An employee who believes they have been unfairly dismissed can either contact ACAS or the Citizen’s Advice Bureau who may be able to help or an employment solicitor.
For more information, contact our specialist Employment Law Solicitors.