An employer has been ordered to pay compensation after making menopause comments

Menopause at work

An employee recently succeeded in claiming that she had been harassed on the grounds of her sex and age following comments made by her manager about menopause.  She also won her claim of victimisation based on the treatment she received after she complained about the offending comments. 

The Law

Harassment which is related to a “protected characteristic” is unlawful discrimination under the Equality Act 2010.  Relevant protected characteristics for the purposes of a harassment claim include age, disability, gender reassignment, race, religion or belief, sex and sexual orientation.

The relevant law is contained under section 26 of the Equality Act 2010 which states that it is unlawful harassment if a person (A):

1. engages in unwanted conduct related to a relevant protected characteristic, and
2. the conduct has the purpose or effect of violating another (B)’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

Victimisation occurs where one person treats another less favourably because he or she has asserted their legal rights in line with the Equality Act 2010 or helped someone else to do so.  

The definition of victimisation is contained in section 27 of the Equality Act 2010.  Section 27 states that victimisation occurs where a person subjects another person to a detriment because they have either done a “protected act” or because they believe they have, or may do, “a protected act”. 

A ‘protected act’ is:

• Making a claim or complaint of discrimination under the Equality Act 2010
• Helping someone else to make a claim by giving evidence or information.
• Making an allegation that an employer or another person has breached the Equality Act 2010.
• Doing anything else in connection with the Equality Act 2010.

The Facts

Ms Best was employed by Embark on Raw Ltd, a company that sold raw pet food, as a sales assistant.   Ms Best was employed for 15 months by the company until she was dismissed on 11 May 2020.  She was told that the reason for her dismissal was that she was rude and confrontational with colleagues and managers.  

Ms Best subsequently brought claims against the company for automatic unfair dismissal, harassment related to sex and age and victimisation.  

In relation to her claims of harassment, Ms Best claimed that one of the directors of the company, Mr David Fletcher, had unlawfully harassed her by making inappropriate and derogatory comments about her age and remarks, relevant to her sex, in relation to his perception or assumption that she might be menopausal or be experiencing stereotypical menopausal symptoms. 

As for her claims of victimisation, Ms Best said that she complained to the other director of the company, Mrs Andrea Fletcher (Mr Fletcher’s wife) about Mr Fletcher’s inappropriate comments, which included Mr Fletcher shouting that “she MUST be on her menopause” during an argument with Ms Best.  However, instead of taking her complaints seriously, Ms Best alleged that she was chastised by her employer, issued with a verbal warning and subsequently dismissed.   

The Findings

The Tribunal found that Mr Fletcher unlawfully harassed Ms Best in relation to her sex by directly asking her whether she was menopausal.    The tribunal said that this was a highly sensitive topic for Ms Best and that Mr Fletcher acted tactlessly by asking her this question after she had made it clear she did not want to talk about it.   His pursuit of this topic after Ms Best had said she didn’t want to hear about it amounted to unwanted conduct that had the effect of violating the Claimant’s dignity and of creating a humiliating environment for her at work.

The tribunal also said that Mr Fletcher also unlawfully harassed Ms Best in relation to her age.  This was in relation to an incident at work where Mr Fletcher, who was aware of Ms Best’s considerable anxiety regarding the covid 19 pandemic (which was at its peak at that time) read out a newspaper article in front of her that said that younger and fitter people might be prioritised for ventilator treatment because ‘they are more likely to survive’. This, the tribunal held, exacerbated Ms Best’s anxiety because Mr Fletcher was clearly implying that she was not one of those ‘younger and fitter people’ with priority.

Finally, the tribunal upheld Ms Best’s claim of victimisation, finding that her employer had subjected her to detrimental treatment after she made an allegation of sexism and ageism against Mr Fletcher.  The tribunal found that Ms Best’s complaints contributed to her employer concluding that she was paranoid, petty and obsessed and that she should be dismissed.  

At the remedies hearing, Ms Best was awarded £4000 in compensation for injury to feelings in relation to her claims of harassment and victimisation. 

Points to note

1. Although Mr Fletcher’s remark regarding Ms Best being menopausal was judged to be a “one-off remark”, it was nonetheless considered serious enough to warrant an award of £2,000 in compensation for injury to feelings.   The tribunal pointed out that the menopause was a subject that Ms Best found distressing and that was intensely private for her but, despite this, her employer continued to persevere with “a tactless and humiliating conversation”. 

2. This case is one of a growing number of cases coming before the tribunals where employees are alleging menopause-related discrimination.  This appears to be symptomatic of a growing recognition of the difficulties that women going through the menopause can experience in the workplace, an awareness that has been fostered by media coverage and the greater availability of information, resources, and support for women, from support groups to podcasts. 

3. As this case demonstrates, stereo-typical assumptions about menopause can land an employer in hot water as can a lack of understanding of menopausal symptoms.  Employers risk claims of age and sex discrimination and potentially also disability discrimination in such situations. 

Action to take

1. Provide training to managers so they know what the symptoms of menopause are and how they can support female employees who are experiencing difficulties at work because of these menopausal symptoms.  The more supportive and knowledgeable managers are about menopausal symptoms, the less likely that employees will feel embarrassed about discussing with them how the menopause is affecting their health and their work.

2. Implement a Menopause at Work Policy to help promote awareness about menopause among staff, to encourage employees to feel confident to ask for support if they need it and to assure employees going through menopause that you are committed to providing a supportive working environment for them.

3. Provide access to services such as employee assistance programmes or counselling or signposting to organisations and services that can provide help and support.

4. Carrying out a risk assessment that includes an assessment of the specific needs of menopausal women.    Often simple adjustments – such as providing a desk fan or a more comfortable uniform or time off to visit the GP – can help.

5. Make reasonable adjustments for employees to help alleviate or remove any difficulties they are having at work due to their menopause symptoms.  Any adjustments made should be done in consultation with the employee and, if appropriate, occupational health or other health professional, to ensure the adjustment is suitable and meets the employee’s needs.

6. Manage performance issues positively and sensitively, ensuring that you have regular, informal meetings with the employee to discuss the areas where improvement is required and/or support is needed.   Having informal discussions should help you to identify any underlying cause of the performance issues, to address any health issues that the employee may have and to consider whether any potential adjustments can be made.  Formal performance management processes should not be commenced before these issues have been explored.

If you would like more information or advice on how you can best manage menopause in the workplace, please get in touch with us.

You can read the full case details HERE

You may also find podcast episode 183 of the Employment Law & HR Podcast helpful in deciding on your strategy to support employees in respect of the menopause. You can listen online HERE