Is it possible that the menopause could become a new protected characteristic?

Author: Elizabeth Baker
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On the 21 May 2019 a debate was held in the Scottish Parliament on It’s Time to End the Stigma of the Menopause. The outcome of the debate, that lasted over one and a half hours, was that Parliament acknowledged that the menopause has for too long been a taboo subject; that there is often little understanding of the symptoms of the menopause; the work of the Scottish Women’s Convention which had gathered the experiences of women across Scotland who were saying in their own words that this should no longer be viewed by society as “a women’s issue” was commended  and it was agreed that by raising awareness of the menopause its impact could be better understood and addressed.

It is suggested that 75-80% of working women are of menopausal age (45-55) but despite that, a survey conducted by the STUC revealed that 99% of the respondents confirmed that their employer did not have a policy addressing the menopause and its symptoms. Also the research showed that women were reluctant to share their symptoms with their employer for fear of demotion. This is hardly surprising, as some of the symptoms of the menopause, such as depression and mood swings, hot flushes, fatigue and lack of concentration can make women feel uncomfortable and vulnerable and perhaps not at their most confident.

But there is no doubt that we have an aging population and with Brexit on the horizon there may be a potential skills shortage so that ensuring retention and supporting the performance of women in the 45-55 age bracket is an economic imperative. Some are, however, now arguing that it should also be a legal one.

Under the Equality Act 2010 protections are granted to employees in relation to disability and sex. Last year an Employment Tribunal held that a claimant suffering from menopause symptoms was disabled. The case was Davies v Scottish Courts and Tribunal Service. Ms Davies was dismissed because of her conduct, but the Employment Tribunal held that her conduct was affected by her disability, being the symptoms of the menopause causing her to be confused and forgetful and her dismissal amounted to disability discrimination.

Of course not all women suffering from menopausal symptoms will be considered disabled but some may have a claim for sex discrimination. In the case of Merchant v BT plc a claimant was dismissed for poor performance. Before her dismissal she had submitted a letter to her employer from her GP confirming that she was going through the menopause which could affect her concentration at times. The manager who dismissed her did not look into the effects that the claimant’s symptoms could have on her performance. It was held that Ms Merchant had been discriminated against on the grounds of her sex on the basis that a man suffering from comparable symptoms would not have been treated in the same way.

Food for thought indeed and maybe the need for more desk top fans!

Elizabeth Baker

About Elizabeth Baker

Elizabeth is our Business Development Manager. She has a degree in both English Literature and Law from Glasgow University. After graduating in 1983 she served her traineeship as a solicitor in Oban. When she was admitted as a solicitor her first job was at Mitchells Roberton in 1985 so she is a well known face. She spread her wings and joined other firms along the way and had a successful law practice under her own name for some years. She returned to Mitchells Roberton in 2011 and works primarily to enhance the marketing of our firm. With her excellent links with small business and the media in the greater Glasgow area, she is well placed in the role and generates a good deal of referrals and new business. Elizabeth is a people person and naturally connects with both staff and clients. Elizabeth has two grown up children and loves walking her dog, travelling and reading literature. Email: eb@mitchells-roberton.co.uk

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