The menopause: Harassment in the workplace?

The employee was 52 years old and worked for a pet food shop. The employee was asked by a colleague at work whether she was menopausal in the presence of a customer. The colleague continued to pursue the topic after the employee made clear that she did not want to discuss the matter. Whilst the menopause is not a protected characteristic, the employment tribunal found that the comments made by the colleague amounted to unwanted conduct relating to the employee’s sex, and that this conduct had the effect of violating the employee’s dignity and of creating a humiliating environment for the employee at work. As such, the employee’s claim for harassment succeeded.

Menopause is not a protected characteristic under the Equality Act (EqA) 2010. However, as shown in this case, it is possible that employees may bring a successful claim in the employment tribunal by relying on a protected characteristic such as age, sex or disability, which are all covered under the EqA.

The Employment Appeal Tribunal (EAT) recently held that a tribunal erred in deciding that an employee suffering from menopausal symptoms was not disabled under the EqA (Rooney v Leicester City Council). This claim has been remitted for consideration by a different employment tribunal. We wrote a summary on the EAT’s decision in Rooney back in November 2021, which can be accessed here.

The decision in Best v Embark highlights the need for employers to tread carefully when discussing the menopause with its employees. Acas has issued guidance on talking with staff about the menopause, which includes a recommendation for employers to make sure their managers receive training on dealing with this topic. The Acas guidance note (Menopause at work) can be accessed here.

The Women and Equalities Committee has launched an Inquiry into Menopause and the Workplace which will “examine the extent of discrimination faced by menopausal people in the workplace, and investigate how Government policy and workplace practices can better support those experiencing menopause”. It is understood that the Inquiry will consider whether existing equality legislation should be strengthened and if the menopause should become a protected characteristic under the EqA.