Sitting through the performance appraisal, Christie’s line manager had suspicions about why she was not hitting performance targets but couldn’t see if he could discuss it without being accused of some form of discriminatory conduct. Finally, he took a deep breath and with eyes fixed on the floor, asked: “Are you menopausal?” His question was met with silence. He had broken a taboo.
The symptoms of menopause are well-known but not typically discussed in the workplace. There might be the odd flippant comment, (“It’s either hot today or I’m having a hot flush”) not immediately attributable to being a complaint about one of its many symptoms. It is highly unlikely a line manager, regardless of gender or level of knowledge, would instigate a discussion about menopause, either informally or formally – about how an employee’s symptoms might be affecting job performance or attendance at work.
Menopause is not the last remaining taboo. Many employers are now alive to the issues relating to obesity in the workplace (from prejudice and discrimination to the potential adverse impact on productivity and costs). It would take a brave line manager to suggest an employee was overweight and something needed to be done about it. But this is exactly what line managers should do. Employers must create an environment where employees can discuss their symptoms, whatever the cause might be. It has been recognised for some time now that obesity may constitute a qualifying disability in terms of the Equality Act 2010.
Given that women can suffer significant adverse health changes as a result of the menopause, in some instances, over many years, and the way we now understand disability discrimination, it is possible symptoms (fatigue, poor concentration, palpitations, anxiety, headaches, joint pains, sleep and mood disturbance, etc) could hinder full, effective participation at work and as such, may be impairments with a “substantial and long-term adverse effect on the ability to carry out normal day to day activities”, thus meeting the definition of disability. In that case, it is legitimate for Christie’s line manager to discuss the issue with her.
Alternatively, Christie’s line manager may find it easier to first broach the subject by conducting a risk assessment in much the same way as for all women of child-bearing age and pregnant and new mothers, but instead to consider the specific needs of menopausal women. Along with cultivating a culture where women feel more comfortable, raising any issues would go a long way to tackling this taboo.
This approach does not remove the risk that may arise from not having a discussion with Christie, namely, a failure to comply with the duty to make reasonable adjustments, which might include providing a workspace close to an open window, access to cold drinking water, easier or more frequent access to a lavatory and flexible working. This duty only arises if the employer knows, or ought reasonably to have known, that the employee has a disability and there lies the problem. Even if not deemed a disability, could menopause lead to a claim of sex discrimination? For example, if the manager had instead made an inappropriate comment about her sweat patches or joked with others about how she was to be avoided when “in one of her moods” it would be open to her to argue she had been subjected to sex discrimination. There are no reported cases as yet, but it may only be a matter of time.
Donna Reynolds is a Partner at CCW Business Lawyers