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18 October 2022 is World Menopause Day – an awareness day created to shine a light on issues around the menopause but also women’s health and wellbeing more broadly. Both the menopause and conditions such as endometriosis are matters that, generally speaking, employers aren’t well informed on, particularly in the case of endometriosis, even though this condition is as common as diabetes.
But this is unsurprising given that menstrual issues unfortunately remain culturally taboo, and that endometriosis takes on average 8 years to diagnose. If the condition is poorly understood among the medical profession, it’s hardly surprising that employers are struggling too.
Increased awareness about the menopause, following the high-profile campaign by Davina McCall, has been reflected in the number of Tribunal cases which cite the menopause. In 2021, the number increased by 44% compared to 2020. Typically, individuals (both women and transgender men) will rely on the protected characteristics of sex, disability and/or age when bringing discrimination claims relating to these conditions.
As well as presenting litigation risk, menopause has also become a reputational issue for employers. Recent research shows that employers are not doing enough to support employees, and over the past few years the Government has been looking into the issue in some depth. Although the Government has recently confirmed that it has no plans to make menopause a protected characteristic under the Equality Act, it has appointed the first Women’s Health Ambassador for England who will sit on the newly established UK Menopause Taskforce.
One of the first hurdles for an employee bringing a disability discrimination claim is to show that they are disabled under the Equality Act. It will be a disability if the condition:
When deciding claims under the Equality Act, Tribunals must take account of the EHRC Code, where applicable, which confirms that “what is important to consider is the effect of the impairment, not the cause”. This will be particularly relevant when assessing whether the menopause or endometriosis amount to a disability.
In recent years disability has been the protected characteristic most frequently relied upon as grounds for a discrimination claim in relation to the menopause. Although it feels uncomfortable describing menopause in terms of a “medical condition” (after all, every woman goes through this natural process), the menopause can produce an array of symptoms including hot flushes, palpitations, sleeplessness, headaches, brain fog, memory loss, anxiety and depression. Obviously one of these symptoms alone can be seriously debilitating, let alone when suffered as a combination, and with menopausal symptoms often lasting for several years, it isn’t surprising that Tribunals have in certain cases found that the menopause amounts to a disability under the Equality Act.
Examples of how Tribunals have dealt with issues around the menopause:
In April 2022 the Fawcett Society published the results of what is believed to be the largest survey of menopausal women in the UK (over 4,000 women aged between 45 – 55) – the survey data evidenced the likelihood of claims with 77% of surveyed women experiencing one or more symptoms that they describe as “very difficult”. This is further illustrated through a survey commissioned by the Women and Equalities Committee which found that nearly a third of women have missed work due to menopausal symptoms.
As noted above, although the Government confirmed in May 2022 that it currently has no plans to introduce menopause as a new protected characteristic (or to introduce a dual discrimination provision based on age and sex which had also been touted), Women and Equalities Committee Chair, Caroline Nokes MP, said in July 2022: “The omission of menopause as a protected characteristic under the Equality Act is no longer tenable, given that 51% of the population will experience menopause”, an indication of potential significant change in the future.
Baroness Stedman-Scott has also confirmed that the Government “will assess whether existing guidance on the menopause adequately reflects the growing body of relevant tribunal caselaw”, a clear nod to the increased litigation in this area. This of course does not mean that discrimination claims will plateau or reduce – the protected characteristics of disability, sex, age and potentially gender reassignment provide ample grounds for claimants bringing menopause-related claims.
The menopause has rightly attracted significant focus in recent years and months as a workplace issue. However, with endometriosis affecting around 1 in 10 women and being the second most common gynaecological condition in the UK, it is another condition that deserves and needs more attention.
It is a condition where tissue similar to the lining of the womb starts to grow elsewhere, such as the ovaries and fallopian tubes. Symptoms tend to emerge during a woman’s most active working years, and it can take at least a decade to get a diagnosis which clearly makes for a long and stressful journey for many women. Again, there can be a multitude of symptoms which can include chronic pain (often stomach and back), heavy bleeding, fatigue, sustained inflammation and in severe cases, infertility and organ dysfunction. Clearly the condition can therefore disrupt daily routines and mental health. Further, those suffering may require surgery and the long-term impact of that can also have adverse and long-term consequences.
These symptoms all point towards findings that the condition can meet the threshold definition of disability.
Indeed, in Monaghan v ASA International Ltd, the claimant succeeded in obtaining a finding that her endometriosis amounted to a disability. Her symptoms included “heavy bleeding for 2 days a month, in addition to abdominal pain, bloatedness, fluid retention and pre-menstrual tension syndrome”. The condition also “caused tissue to grow on her bladder and bowel” resulting in “bleeding and pain”. The Tribunal had little trouble in determining that her endometriosis amounted to a disability.
It’s important to remember that each case will be assessed on its own facts. Both the menopause and endometriosis may amount to a disability but this won’t always be the case. However, employers should be mindful that when they do, this presents discrimination risk and will oblige employers to at least consider and potentially implement reasonable adjustments.
We have previously set out what employers can do to mitigate this risk in relation to the menopause and the same actions will apply in relation to endometriosis. As a first step, of fundamental importance is gaining a better understanding of these conditions, then demonstrating awareness (whether that is, for example, by implementing a menopause policy, which could also reference other health conditions impacting women such as endometriosis, and/or implementing training). Relaxing flexible working arrangements can also help relieve or reduce the impact of symptoms (and would also be a reasonable adjustment).
According to research by BetterUp, 90% of women think there should be policies in workplaces to support them when it comes to female health issues. But aside from the fact that women simply deserve and need more support in these areas, there is significant financial and reputational risk for employers who don’t take these issues seriously. Discrimination claims are on the rise. Compensation for such claims is uncapped, so awards can be very significant – and any dismissal relating to these issues could also lead to unfair dismissal claims where the employee has at least 2 years’ service.
Time off work is obviously a cost to employees as well and recently published research by the UCL Social Research Institute shows that the onset of menopause before the age of 45 reduces months spent in work by 9 percentage points (around 4 months’ employment) for women during their early 50s.
In our view, a focus on women’s health issues is here to stay and, although clearly this won’t happen imminently, legislative reform is possible in the future. Indeed, on 9 February 2022, workplace support for people with endometriosis was debated in the House of Commons where it was also confirmed that the Government would publish its strategy on women’s health later this year. The strategy was in fact published on 30 August 2022 and has an explicit focus on these conditions, highlighting the current gulf in knowledge:
“This ‘male as default’ approach … has led to gaps in our data and evidence base that mean not enough is known about conditions that only affect women – for example, menopause or endometriosis”.
In July 2022, the Government’s Response to “Menopause and Employment: How to enable fulfilling working lives” confirmed there would be no new legislation for the time being, but the narrative is undoubtedly clear – there is and will be movement in this area.
In the meantime, employers should consider steps they can take to support employees who are going through the menopause and who have endometriosis. The Fawcett Society 2022 survey noted that 8 in 10 of those surveyed said their employer had failed to take action to support menopausal individuals, with 1 in 10 actually leaving their jobs due to menopausal symptoms. Having a robust set of policies will help avoid mistakes in dealing with these issues, improve female attrition rates and mitigate the risk of litigation and reputational damage.
We can assist with providing or updating such policies. Please get in touch to find out more.