Is flexible working for menopausal women a step too far?
There is a danger that legislative measures to improve menopause support for women in the workplace constitutes special treatment
Last month Labour announced plans at its conference to make improvements in the workplace for women experiencing the menopause. Under the plans employers with more than 250 employees will be required to train managers on the effects of the menopause, ensure absence procedures are flexible, and treat menopause as a long-term fluctuating health condition. Recommended adjustments include adequate ventilation to help alleviate hot flushes, access to cold water and flexible hours if sleep is disturbed.
While these plans seem to offer a practical solution to a workplace problem (with women making up an increasing proportion of the ageing workforce) they have received mixed reactions. Some argue that it amounts to giving ‘special rights’ to women. It may also create a backlash from other employees, for example working parents who feel that menopausal women are being treated more favourably. It may also be the case that ‘special treatment’ is not necessary as the law already provides sufficient protection.
The legal landscape
The Equality Act 2010 provides that an employer is under a duty to make reasonable adjustments for employees/workers with a disability where that disability places them at a disadvantage in carrying out their job. A ‘disability’ is defined as a long-term physical or mental impairment that has a substantial and adverse impact on the individual’s ability to carry out normal day-to-day activities.
In a recent employment tribunal case an employer accepted that the employee’s menopause was a disability and the tribunal went on to find that the employee had been unfairly dismissed and discriminated against because of her disability. The employee, Mandy Davies, who worked for the Scottish Courts and Tribunals Service, had been suffering from symptoms related to the onset of the menopause for the last two to three years of her employment, which included heavy bleeding, severe anaemia, feeling emotional and lacking concentration at times.
This case shows that legal protection is already available for women where the extent and impact of the menopause amounts to a disability. As such an employer would be required to make reasonable adjustments such as allowing flexible working hours or shift changes, flexibility over uniforms, and provision of changing facilities. It might also include, perhaps more controversially, adjustments to performance or sales targets to take account of the effects of the menopause.
What the Equality Act does not require, however, and which forms a key part of Labour’s plans, is for employers to train managers on the effect and impact of the menopause and to allow flexible working to all women experiencing the menopause regardless of the extent of the symptoms or impact.
This would elevate women going through the menopause to a level of special treatment and protection above any other group currently protected under the Equality Act. For example, what about employees with other disabilities such as mental health? Why should employers not also be required to provide training to managers on how to deal with these issues and allow flexible working in these cases; or training on diversity and inclusion or sexual harassment and discrimination generally?
While the aims of the plans are laudable it seems hard to justify prioritising a particular group (menopausal women) over any other equally deserving group.
Further, the plans make no distinction between the wide-ranging symptoms and impact that the menopause can have. At one end there are women who experience few symptoms with no or little effect on their working lives. On the other are those that experience severe and debilitating symptoms and end up having to give up work. There would seem to be little justification for forcing employers to provide flexible working for the women whose symptoms have no material effect on their working lives.
The way forward
Within the workplace there is a huge amount of ignorance and a lack of understanding of the menopause and its impact. Awareness is badly needed in order to break the stigma and ensure that women are not put at a disadvantage in the workplace. However, a change in the law to allow women going through the menopause ‘special treatment’ is not the only, and perhaps not the best, way to achieve this.
There are a number of actions that employers of all sizes can take to address the issue. This includes developing policies and guidelines dealing with the menopause in a similar way that policies deal with maternity and paternity leave, bullying and harassment, and diversity and inclusion.
The provision of training to male (and female) managers to help them understand and feel comfortable discussing the menopause should help to create a more open, sympathetic and understanding workplace culture.
Other steps could include providing support through occupational health, workshops, seminars, reviewing workplace temperature and ventilation, allowing flexibility with work uniforms, shifts and work patterns. While these steps will not provide a panacea to the problem they should help to provide a more balanced and fairer way to address the issue.
Kevin Charles is consulting barrister at Crossland Employment Solicitors