New ACAS guidance issued for employers to help manage the impact of menopause at work

Following World Menopause Day on the 18th of October 2019, Acas have published new guidance to help employers support staff affected by the menopause and its symptoms.

Employers have a duty of care to protect the health and wellbeing of their employees, as well as an implied duty of trust and confidence. Employers should also be aware of the potential for claims of sex discrimination and disability discrimination to arise in consequence of their treatment of women experiencing symptoms associated with the menopause. The limited case law on the issue from the employment tribunal demonstrate the possible consequences of not doing so.

In Merchant v BT Plc [2012], the dismissal of a poorly performing female employee, who had given her manager a letter from a doctor explaining that problems associated with the menopause were adversely affecting her capability, amounted to direct sex discrimination and unfair dismissal. The employer chose not follow normal procedure and carry out further medical investigations before taking the decision to dismiss the employee. The tribunal held that the manager would never had adopted ‘this bizarre and irrational approach with other non-female-related condition” and was wrong to use his wife’s experience as relevant evidence.

In the case of Davies v Scottish Courts and Tribunals Service [2018], the tribunal found that the employee, who was suffering from transition symptoms, had been dismissed ‘because of something arising in consequence of her disability’ and the employer had failed to consider that her conduct was affected by her disability when taking the decision to dismiss. The employer was therefore liable for disability discrimination and unfair dismissal and the employee was reinstated with back pay and injury to feelings compensation.

Any negative consequences due to the menopause or transitional symptoms are clearly unacceptable. Miss-managing its impact or not providing the help and support needed, can not only elevate the symptoms experienced by the employee, but also lead to legal consequences for the employer.

Acas have provided some helpful steps for employers, key points being:

• Minimise, reduce or remove workplace health and safety risks for workers, to prevent making menopausal symptoms worse and to help manage symptoms by making necessary changes.
• Develop a menopause policy and train all managers on how to manage a menopause concern, on the affects that symptoms can have and what support can be offered.
• Give a worker the option of talking initially to someone other than their manager such a menopause or wellbeing champion.
• Carefully manage sickness absences. As outlined above, menopause symptoms can be considered a disability and therefore considering reasonable adjustments or changes is advisable.
• Ensuring managers have an awareness of employment laws that can relate to menopausal issues such as the risk of sex, disability or age discrimination.

Acas provides further guidance on working with employees to find solutions, including possible changes such as providing fans and altering working hours. The full guidance can be found here.

As highlighted by Acas, it is very much in the interests of the employer to support anyone with menopausal symptoms in the workplace, which affects a substantial number of workers. Doing so will help with retention of staff and skills and potentially avoid a discrimination claim being made to an employment tribunal, which can be time consuming and expensive to defend.