Employers are under a statutory duty to ensure the health and wellbeing of all their employees. While menopause isn’t classed as a protected characteristic, it does fall under the protected characteristics of sex, disability and age under the Equality Act 2010.
We are seeing an increasing number of employment tribunals brought citing menopause. Over the past five to ten years these have been mainly under age and sex discrimination, but we’re increasingly seeing cases of disability discrimination brought. While menopause is generally not a disability per se, the symptoms can amount to a disability. So employers need to be very careful, as a tribunal can be costly, both in monetary terms and also to reputation.
There’s more awareness now about menopause, and in some cases people are realising their employer isn’t giving them the support they should be. We are seeing individuals feeling as if they have no choice but to resign, which is classed as constructive dismissal. And this can then lead to tribunal.
The costs to employers
The costs involved vary by case. Obviously there’s the cost of replacing that individual. But the cost of defending can also be significant. Plus there’s the cost of potential award for loss of wages. We’re seeing long backlogs at the moment, years in some cases, and damages go from the date of the alleged discrimination to the date of the hearing. Also to be considered are possible damages for injury to feeling. These amounts are uncapped, leaving employers open to potentially huge bills if they lose.
It’s always going to be fact-specific but there have been an increasing number of cases where managers are being called out for inappropriate comments or not adequately dealing with circumstances where someone has come to them struggling with menopausal symptoms.
For example, there was one case where a manager didn’t follow the company process, substituting it with his own view because his wife was going through menopause. The employee brought the company to tribunal and won her case.
We have also seen a recent appeal where a case had been rejected for disability discrimination but has now been accepted. The original judge had focused on aspects the claimant was still able to do, rather than things she could no longer do. The claimant appealed successfully and a new hearing has been scheduled.
Tribunals: on the increase
When we consider that between 2021-2022 there was a 44% increase in tribunal claims citing menopause as a reason for discriminatory treatment, we start to see the picture. Plus, some claims will be settled before reaching tribunal, so we don’t know the full scale.
But essentially, employers do need to sit up and take notice. This is still relatively early days and uncapped awards can be vast. Especially if, as is often the case with menopause tribunals, the individual is a senior figure on high wages. Not only will organisations be facing a big bill, they’ll receive a lot of unwelcome media attention and see their reputation seriously dented.
