by Joanne Hyde, Partner, Head of the Employment Law Unit and Head of Commercial Department, Eversheds Sutherland LLP Ireland
John is not well – he cannot concentrate, he is irritable, he wakes up sweating and is very tired, his heart is racing, his weight has increased. John is 49 years old. What might be wrong – is it cancer, is he depressed, does he have heart disease?
Mary is not well – she cannot concentrate, she is irritable, she wakes up sweating and is very tired, her heart is racing, her weight has increased. Mary is 49 years old. What might be wrong? Well, thanks to Joe Duffy, we are now openly talking about a different possible explanation. Mary might be going through the menopause.
We know that nearly half the workforce in Ireland are women. We also know that we are all working into later life. This means that more and more of the workforce will have to work through menopause. In light of the recent discussions that have been generated by the radio coverage, we thought it worth exploring potential legal considerations.
There is no current legislation which expressly refers to the menopause. But that is not to say that existing laws may not be relevant.
First, under existing health and safety legislation, employers have a duty of care to their employees. This arguably extends to assessing the specific requirements of employees affected by menopausal symptoms to ensure that symptoms are not exacerbated by working conditions or work practices. In assessing health and safety risks, an employer should consider matters such as temperature and ventilation, the adequacy of restrooms, and the materials used in any uniform.
The Employment Equality Acts may also be relevant. We know that gender, age and disability are all protected characteristics so it is not a stretch to envisage a claim of discriminatory treatment or harassment on any one or more of these grounds.
Such a case is all the more likely to arise, and indeed, succeed, where an employee’s performance or capability to do her job is in question and an employee links the dip in performance to some of the terrible symptoms we have heard spoken about so openly in the past weeks. After all, who would be able to do their job to the same standard if they hadn’t had a night’s sleep in four years?
And while we have not had cases yet in this jurisdiction, we know from caselaw in other jurisdictions, in particular in the UK, that these are not just theoretical claims.
In the 2012 case of Merchant v BT plc, the UK employment tribunal considered the issues. Ms Merchant was dismissed following a final warning for poor performance. She had previously given her manager a letter from her doctor explaining that she was “going through the menopause which can affect her level of concentration at times”. The manager decided not to carry out any further investigations of her symptoms, in breach of BT’s performance management policy. The tribunal upheld the claims of direct sex discrimination and unfair dismissal and held that the manager would never have adopted “this bizarre and irrational approach with other non female-related conditions”.
The Scottish courts considered the issue in 2018 in the case of M Davies v Scottish Courts and Tribunals Service. In that case, a woman with menopause may be deemed to be a disabled person under the Disability Discrimination Act 1995 (which is our equivalent of the Employment Equality Acts), if her symptoms are long term and substantial. It was found that in such a case, the employer is bound by duty to make reasonable adjustments or accommodation. One of the adjustments required by Ms Davies was to be located close to the toilet. The other adjustment was access to cold water on the desk for medication. The employer considered neither adjustment and Ms Davies was successful in her claim of failure to make a reasonable adjustment.
Finally, in an anonymised 2020 decision, the employment tribunal considered comments about menopause in the workplace and when they may constitute harassment on the grounds of gender or age. The tribunal found that the employee concerned had been subjected to harassment over an extended period of time by her line manager in relation to being menopausal.
These cases all demonstrate that while we have not yet had much by way of litigation arising from the menopause in Ireland, the existing legal framework can, and undoubtedly will, provide avenues for legal redress for employees who suffer detriment in the workplace as a result of their work experience during the menopause.
In light of the recent welcome openness about this issue, employers are advised to consider their own workplaces, whether any changes are appropriate to avoid adverse experiences by employees, whether equality policies should be reviewed to deal with employees suffering menopausal symptoms and whether managers, of all genders and ages, need training to understand, identify and manage issues which may be attributable to the menopause.
About the author
Joanne Hyde is a Partner and Head of Employment Law at Eversheds Sutherland Ireland. She is also Head of the Commerical department. Joanne is a pragmatic and business focused employment lawyer. Her experience as in-house employment lawyer for Intel Corporation, one of Ireland’s leading multi-national employers has given her a strong insight into the HR concerns and complexities facing clients. In addition, Joanne has many years’ experience advising both international and indigenous clients on a wide range of employment and industrial relations issues. Her comprehensive experience includes advising on employment law challenges arising from commercial transactions, employment disputes and litigation as well as providing strategic and proactive advice on HR issues.