How menopause policies could help you to reduce tribunal risk

How menopause policies could help you to reduce tribunal risk

September 16, 2019

OK, so I’m convinced.

Previously when asked whether menopause policies were a good idea, my reaction would be Oh My Days! where does this all end? Time of the Month Policy?

However when I looked into it and realised that employees were winning tribunals because they had been dismissed it made me change my mind.  Because lets face it, menopause happens to women (though my husband may disagree) and if women’s menopause symptoms are not treated sensitively, employers can face increased risks of claims for age, sex and disability discrimination.


In 2017 a government report – Menopause transition: effects on women’s economic participation – highlighted not only that significant numbers of women experience problems at work from their symptoms and consider leaving as a result, but also that there is no uniform experience.

In many cases women may have been performance managed, or left jobs they could previously handle due to the hormone changes affecting their bodies due to menopause.  Perhaps they didn’t say to their employers this is the menopause, but if they did would the employer have taken notice.

A wide range of physical and psychological symptoms are associated with the menopause, including hot flushes and night sweats, changes in menstrual flow and regularity, and depression. Conditions at work – such as hot or poorly ventilated environments, formal meetings and demanding workloads and deadlines – can all exacerbate such symptoms.

Two employment tribunal decisions demonstrate how sex and disability discrimination claims can arise in this context – employers also need to be aware of the potential for claims of unlawful harassment and victimisation.

Merchant v BT plc

In Merchant v BT plc, Ms Merchant was dismissed for poor performance even though she had given her manager a letter from her doctor explaining she was “going through the menopause which can affect her level of concentration at times”.

The tribunal upheld claims of direct sex discrimination and unfair dismissal. Ms Merchant’s manager had failed to follow the employer’s performance management policy by not investigating her symptoms further.

It found the manager would not have adopted “this bizarre and irrational approach with other non-female-related conditions” and he had been wrong to consider that his wife’s experience was relevant to the approach he took. Again how often to we hear this, my experience was X so your experience must be X. This is a training need.

Davies v Scottish Courts and Tribunals Service

In Davies v Scottish Courts and Tribunals Service, court officer Ms Davies experienced very heavy bleeding at the onset of the menopause, causing her to become severely anaemic, feel fuzzy and emotional, and lack concentration.

A situation arose where Ms Davies could not remember whether she had put her dilutable medication into a water jug from which she was drinking in a court room. Two men subsequently drank from the jug while she escorted the court sheriff off the bench for an adjournment.

Following a health and safety investigation, which recommended disciplinary action, Ms Davies was found to have lied about what happened and to have brought the court into disrepute. She was dismissed.

The tribunal found that Ms Davies was unfairly dismissed. Her claim of unlawful disability discrimination also succeeded.

The effects of menopause transition were considered to be a substantial and sufficiently long-term impairment on her ability to perform her day-to-day activities. The tribunal accepted that she was disabled for the purposes of the Equality Act 2010.

The tribunal considered that Ms Davies was dismissed “because of something arising in consequence of her disability” under section 15 of the Equality Act and that her dismissal was not a proportionate means of achieving a legitimate aim of her employer.

Key to those conclusions were the tribunal’s findings that Ms Davies’ employer had failed to take account of the fact that her conduct was affected by her disability and, in particular, that her memory loss and confusion were caused by her disability.

Menopause policies, guidance or training.

Employers can help address what is still seen as a taboo subject by introducing specific menopause policies/guidance and training to improve managers’ awareness of its symptoms and their responsibilities.

Employers should also review the physical workplace environment and be flexible concerning issues such as sickness absence, performance management and discipline.

Menopause policies seek to encourage and facilitate open conversations about the menopause and increase the understanding of managers and others of the issues and their responsibilities. Such policies may:

  • provide guidance on menopause symptoms and the adjustments that can be made to assist women;
  • remind staff to look after their own health, to be honest in conversations with managers, occupational health and HR and to support colleagues and respect adjustments put in place to help others;
  • remind managers to be familiar with the policy; be willing to have open, professional and sensitive discussions with colleagues; to ensure confidentiality; to agree with the individual which colleagues should be informed of the situation and on what basis; and to ensure that follow up discussions are conducted; and
  • outline the adjustments that need to be considered, although their relevance will depend on the individual’s situation.

Temperature control, provisions of a fan and access to a rest room may help with hot flushes. Poor concentration may be addressed by considering work allocation, identifying whether the individual is affected at particular times of day and by offering a quiet space to work. Flexible working may assist with sleeping difficulties and low mood. Anxiety and panic attacks may be addressed through an employee assistance programme, counselling and mindfulness and meditation.

By addressing the issues proactively, employers will be able to work towards reducing the risks of disputes and claims, providing a supportive working environment, and maintaining a diverse workforce.

So what can employer’s do?

  1. Don’t raise it with her unless she raises it with you.
  2. Consider implementing a menopause policy, use it to trigger the conversation.  A policy shows we aren’t embarassed, about to ridicule you, will try and understand and want to help.
  3. Engender a culture where women feel supported. Practical, emotional support should be offered.
  4. Ensure that diversity and equality training includes menopause.
  5. When appraising performance, consider the impact on performance of the menopause.
  6. Treat it as an occupational health issue. Privacy and access to experts may support the employee.
  7. Consider it to be a reason for absence.
  8. Consider temporary flexible working policy for when women are experiencing symptoms.

In terms of physical support. Many employers invest in the following:

  1. Fans and good ventilation for employee’s suffering from hot flushes and poor temperature control.
  2. Clean toilets, well equipped facilities near to where work takes place.
  3. Access to natural light and possible SAD lights to assist with mood.
  4. Cold drinking water.
  5. Lighter uniform that is not synthetic and can breathe.
  6. Quiet rest areas to support an employee on a break.
  7. Female only showers.
  8. Reduced exposure to noise as it can positively impact symptoms of fatigue.

If you suspect the menopause is impacting the employee, please don’t suggest it, but create an environment where she can tell you if she wants to.  If you need any assistance with this or any aspect of HR please do not hesitate to contact us.

To purchase our policy for your Day Nursery, Pre-school please use this link. Buy Here.

If you need any assistance with any aspect of HR or employment law please contact us on 01527 909436

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