18 July 2018
In May 2018, the deputy governor of the Bank of England described poor productivity in the UK economy as "menopausal" in an interview with a journalist. He explained that he used the word to mean the phase of an economy when it is climacteric, or “past their peak and no longer so potent”. Faced with the outcry, he apologised for his poor choice of language.
However, the incident showed the negativity around menopause for many people. It can also be seen as a joke – in Noble v Sidhal Ltd, a male employee complained about a colleague commenting that he should be taking evening primrose oil as part of an age discrimination claim.
The average age of menopause is 51, although the signs of transition may begin years beforehand. Many women will suffer only minor symptoms as a result of the menopause. For some, however, the effects can be wide-ranging: 33 are now known and listed in total, including tiredness, lack of concentration and problems regulating temperature (the infamous hot flushes). Women can experience any combination of these.
Menopausal symptoms can also contribute to women feeling unable to continue working, or not putting themselves forward for specialist posts or promotion, thus affecting the diversity of teams within their organisations at a time when the gender pay gap is under scrutiny.
Employers have a general duty to protect the health and wellbeing of staff, and not to behave in a way which may breach employment contracts, including the implied duty of trust and confidence.
It has been clear for many years that to dismiss because of the menopause may be direct sex discrimination.
In Merchant v BT plc (2012), Ms Merchant had received a final written warning for underperformance under her employer's performance management policy. Her performance remained unsatisfactory, and at a final hearing to consider whether she should be moved to an alternative role or dismissed, Ms Merchant provided a letter from her GP saying she was going through the menopause, which caused health problems affecting her concentration. Despite the policy saying that managers should investigate whether underlying health factors were behind unsatisfactory standards of performance, the manager said it was difficult to assess if the menopause was the problem and dismissed her for incapacity.
The employment tribunal found she had been unfairly dismissed and directly discriminated against because of her sex. The manager said in evidence that both his wife and the HR adviser had been through the menopause, and so he could make a judgement on the effect on Ms Merchant's performance and concentration. The tribunal held that he had ignored BT's performance management policy because he did not take menopause seriously and he would not have adopted "this bizarre and irrational approach with other non-female-related conditions".
A person has a disability under the Equality Act 2010 if they have a physical or mental impairment which has a substantial and long-term adverse effect on his or her abilities to carry out day-to-day activities. In a recent Scottish employment tribunal case, Davies v Scottish Courts and Tribunal Service, a female employee's menopausal symptoms were so bad, she was agreed to be disabled under the Equality Act 2010.
Ms Davies worked for the Scottish Courts and Tribunals Service (SCTS) as a Court Officer. She was going through the menopause, and suffered from heavy bleeding. She needed easy and nearby access to a toilet, and took Cystopurin, a type of medication which was dissolved in water and turned the water pink.
The SCTS made sure that she was allocated a courtroom near the toilets when needed and she kept sanitary towels and Cystopurin in a pencil case on her desk. One day, she left the courtroom to escort the Sheriff from court and when she returned, found her pencil case moved and her water jug empty. She could not remember whether or not she had already put Cystopurin into her water jug. She saw two men drinking water, and was told the court clerk had poured them glasses from the water jug on her desk. She said they may be drinking her medication and one of the men began to shout at her.
SCTS's health and safety team became involved, and having researched the medication, advised the men to seek medical assistance. (It was later established that Ms Davies had not put the Cystopurin in the water in any event.) A health and safety officer wrote a report acknowledging that there were no immediate issues around what had happened, but saying that Ms Davies had behaved inappropriately, had not upheld SCTS's values and behaviours, that she had breached the Health and Safety Act, embarrassed her employer, and that her actions were gross misconduct.
An occupational health report stated that Ms Davies was suffering from heavy bleeding, amnesia, tiredness, light-headedness and fainting. However, she was dismissed after a hearing at which it was found that she had lied. She brought claims for unfair dismissal and discrimination arising from disability.
Her employer agreed that her symptoms were so severe that she was disabled at the time and The employment tribunal found that she had been unfairly dismissed (although she had partly contributed to her own dismissal). SCTS had not properly considered her explanation of her confusion and stress, and failed to have regard to her memory loss. She was reinstated in her old job, awarded just over £14,000 for loss of pay, and £5,000 for injury to feelings.
Employers want to retain skilled workers and to avoid claims. What steps should employers take?
For employers looking to understand what employees may be experiencing, how this may affect them at work and what the employer can do to support them, the Trades Union Congress (TUC) has published a menopause toolkit.