The Dr Louise Newson Podcast - 076 - Menopause and Employment Law - Victoria Duddles & Dr Louise Newson

Episode Date: December 1, 2020

Dr Louise Newson is delighted to welcome Victoria Duddles, solicitor and Principal Associate at Weightmans LLP.  Dr Newson and Victoria Duddles first met when they were both guest speakers at a Birmingham CIPD event all about menopause in the workplace. In this podcast, Victoria talks with Dr Newson about the employment law implications for employers when managing and supporting women in the workplace who are going through the menopause and in particular how the Equality Act 2010 may apply. Victoria Duddles' Three Take Home Tips for employers: Put in place menopause policies and training and communicate these with your workforce. Make sure the menopause conversation is open for all staff, but especially for those during discussions about performance or absence. There are lots of resources available for employers, from bodies such as CIPD and ACAS. As a manger or even supervisor, you can look at these and educate yourself on how to best support the women in your workplace. Instagram: @weightmans_law

Welcome to the Newsome Health Menopause podcast. I'm Dr Louise Newsome, a GP and menopause specialist, and I'm also the founder of the Menopause charity. In addition, I run the Newsome Health Menopause and Well-Being Clinic here in Stratford-upon-Avon. Today for my podcast, I've got with me, Victoria Duddles, who is a solicitor at Wakemans, and we actually first-naster a few years ago now. at a conference or a meeting that we were both talking at. So I just wanted to explore some issues really that can affect women who are perimenopausal or menopausal in the workplace. So thank you for joining me today, Victoria. Hello, Louise, and thank you for inviting me. So just explain a bit if you don't mind about what you do and what your job involves, just to set the scene really if that's okay. Okay, so my role is I'm an employment lawyer at Waitmans in the Birmingham office. And as part of that role, I am in the main advising employers on employment law

and employee relations issues, although my background is also, I am a fellow of the CIPD, so I have those qualifications as well. So it's really advising employers in terms of complying with the law and trying to avoid them getting into trouble. Very good. So with the menopause in the workplace, We gave a presentation together, didn't we, a few years ago now? That's right. So that was at Waitmans for CIPD, wasn't it? So tell me a bit about that, if you don't mind. Yeah.

So we did a joint presentation where I covered the employment law aspects of how having an employee who is going through the menopause may impact in the workplace, what their employment law rights are, what obligations employers have towards those individuals, really covered within the equality legislation and practical things that employers should also consider in terms of making perhaps the workplace more kind of menopausal friendly, making it an environment where women feel that they are able to approach HR, to discuss issues that they have where that might impact in terms of their performance or absence or just general working environment and that general openness and culture

within the organisation that would encourage that. And following on from that, you were then talking about the impact that the menopause has on women, how that might look, and the various kind of symptoms and how they may appear and impact on a day-to-day basis.

Yeah, because it's a huge problem in the fact that menopause affects all women. So most working women will experience the perimenopoles or menopause while they're at work. And certainly a few years ago before I was doing as much menopoles work, I didn't even think about the impact of menopause in the workplace because I suppose naively I didn't realise the psychological impact, the effect on women's brains and their memory, their concentration, their energy levels. And all these having such an effect on the workplace in a very negative way often.

And a lot of women still don't realize that their symptoms are due to their hormones. So it must be very difficult for employers to recognise it and to have this culture of talking about it. I suppose in the same way that mental health wasn't really talked about 20 years ago and now it is. What are your thoughts about that? Exactly. And I think there's a mix.

As you say, a lot of people don't perhaps necessarily recognise the symptoms themselves. So even if they were somebody who is willing to be open, they might be going through a performance or absence management process where perhaps the reason that they are off sick with various conditions might be because of menopausal symptoms which they haven't even clocked, or their performance, particularly to say if it's issues relating to concentration and forgetfulness, that impact on their be able to achieve the tasks, or perhaps other symptoms that just mean they're not able to do things as quickly because perhaps they're sort of distracted by having to go to the toilet a lot or things like that, you know, those all can impact on performance and they might

be taken through a performance management process. The employee may have no idea that actually it's due to the menopause because they've not really explored that or are aware of what the symptoms are. And the employer may not because the individual hasn't raised why. they're struggling in terms of the performance, what it is that's causing them to have those difficulties. So you might have a situation where actually someone goes through the absence process and they go through the performance process and actually the symptoms may because of the menopause and the individual is unaware. Or it may be that actually you've got an individual who is too embarrassed to talk about the fact that actually they are being forgetful or they're having

to take time away quite a bit because they have to go to the toilet or they keep having to get drinks or whatever it might be, because they are just too embarrassed to talk about it with their manager, either because there's just not that openness about talking about the menopause. Generally in society, I think that's improving a bit, but very much in the workplace. I think a lot of employers are trying to do more to encourage more openness in relation to that. and, you know, putting in place menopause policies, but it's going to be a slow move. But also, you know, if somebody's manager is of the opposite sex,

the individual may feel quite embarrassed and quite reluctant or even of a different age to actually talk about those things, although you would hope that if there is an HR department, they'd be able to speak to HR, but not all organisations have HR departments. No, and it's very difficult, isn't it, because it's about recognising it first for anything else, isn't it? And, I mean, do employers have a duty to educate about the menopause, or do they not?

I mean, I don't know how it works. Are they obliged to? There's not a duty as such to educate about the menopause. I mean, the duty for employers, they will have their health and safety obligations towards individuals and obviously have to carry out risk assessments on that side of things. and they also have obligations under the Equality Act not to discriminate against people. And I suppose the areas where the menopause can impact on the Equality Act is that if, for example, somebody is perhaps suffering quite severely from menopausal symptoms, it could be that they

may qualify as a disabled person. And there was a Scottish tribunal case, Davies and Scottish courts and tribunals, where Mrs. Davies suffered very badly from menopausal symptoms. She had heavy periods, she had forgetfulness, and that resulted in an incident taking place in the workplace where she couldn't remember whether she'd put her medication in a jug of water that had been made available for the public. And she was dismissed for gross misconduct. And one of the first issues for the tribunal to decide is whether or not she was a disabled person because she claimed unfair dismissal and disability discrimination. And of course, if she wasn't a disabled person, the disability discrimination

claim would fall away. And the tribunal said, well, looking at her situation, she qualified as a disabled person. So she had a physical or mental impairment that had a substantial, long-term adverse effect on her ability to carry out normal day-to-day activities. And when looking to see whether someone comes within that definition, you have to disregard any medication that they've got. Now that doesn't mean to say everybody who, well, all women who go through the menopause are going to be disabled because it impacts, as you know, Louise, on people in different ways. And some people might glide through it and other people will struggle. But on the basis that the menopause process can go on for a number of years, then it's quite feasible that if the effects are severe, that someone will qualify as a disabled person. And in that situation, she was dismissed for Gross Miss.

conduct because they thought that she had lied about whether she could remember the medication had gone in the water. And that was found to have discriminated against her because it was unfavourable treatment because of something arising as a consequence of her disability. Now, in terms of disability discrimination cases where people are claiming they're disabled because the menopause, we haven't really seen any others that I'm aware of that are reported cases. But I think that's perhaps only a matter of time. And maybe because individuals, are just wanting to still get on with the situation and trying to address things in the workplace.

No one should want to try and bring a claim. It's about getting the support in the workplace. But if employers are aware that actually someone who is undergoing the menopause may well be a disability, it perhaps will raise their awareness as to what obligations there are under the Equality Act. I think that's really big, but it's really important as well. I mean, I think if you ask the average person,

and not that anyone's average, but you know, on the street, would the menopause be a disability? Of course they would say no. No, menopause is a natural process. So why on earth are we talking about it as a disability? And actually, before you gave that presentation, and I remember very clearly seeing your slide about the definition of a disability, which you so eloquently just repeated then, about it being mental and or physical, you know, with longer term, well, that persists, I should say,

then, of course, there are lots of women. You know, I see every day in my clinic women who have memory problems, who have fatigue, who have some women tell me they can't even walk down the stairs, they're in so much pain because of their joint aches. But it's mainly the psychological symptoms that are really affecting them at workplace. And I've spoken to a lot of women who tell me they can't remember their login details. They've logged in the same password every day. They can't remember they're sitting at looking at their screen.

They can't remember whether they've even been to a meeting or not, let alone the minutes and the notes that they've taken. and they know they're not safe at work. And the lot of these women are really worried that they've got dementia. They're really worried that they're not up to their job. And I did a presentation just before the first lockdown in London for a big company. And when I finished, I looked around the audience and a lady would burst into tears, which often happens when I talk.

But she had said that eight years ago, she had been promoted at work, and she felt she was a bit young to be promoted to this, such a high position that she had. And every day since then, she'd really struggled with her work and she had struggled with actually keeping her job. And she was finally, she would bring a lot of work home. She was incredibly tired. And it was only when she heard me talking, she was thinking back and realized the day of her last period was eight years ago. So her periods had stopped. And she thought the stress of the job had just made her periods stop.

And she thought nothing more about periods, menopause. She was in her early 40s. They thought, well, menopause is something older women get. And I've since had a message from her to say, she's now taking HRT, she's just transformed and she wishes she'd know what she does now eight years ago. So we don't grow up, do we, thinking, or I certainly didn't think the menopause would affect my ability to work as a doctor, didn't even cross my mind. But it's hard, isn't it?

Because is it the employer's duty or is it the woman's duty to have the right knowledge and information about something that's going to happen to her? I suppose it's an awareness, perhaps by employers, to be aware that there will be employees within the workplace who are menopausal and that when situations arise that mean that perhaps there are aspects of their job that they are unable to do, that they could be a disabled person. And if so, there may be a duty to make reasonable adjustments if they're put at a substantial disability. advantage because of, for example, the employer's policy or physical features of the premises, etc. So, you know, that might be something that employers need to look at in terms of the working environment, you know, could somebody perhaps be closer to the toilets in a more temperature-controlled environment? It might be adjustments in terms of their working hours.

For example, if an individual is perhaps struggling with sleeping, or hot flushes and going on public transport just makes it unbearable, then could perhaps an adjustment be the change of working hours for that individual or the facility to work from home, which we're becoming more and more used to anyway. Obviously, situation will depend on the particular case, the circumstances of the case. But it's that general awareness that, obviously, from a good practice point of view, If you have an employee who is struggling, then from an employee relations point of view, an HR point of view, it's trying to do what you can to accommodate and to support that individual.

But if the individual qualifies as a disabled person, then there may be additional obligations that arise because of the duty not to discriminate and the obligation to make reasonable adjustments if those circumstances arise. But many of the things that perhaps an individual might need, you would hope where they could be, could be accommodated regardless of whether they're a disabled person. Yeah, absolutely. And it is about awareness. And actually, it would make sense for employers. You know, I'm an employer. I employ quite a few staff here. And we have a very transparent and of course, policy. And I'd like to think that all my staff have access to top quality treatment if they wanted as well. But actually, my hidden agenda is I want to get the most out of my staff. I want them to enjoy their job. I want them to work hard. I want everyone to have a great working environment that's safe for them as well. So actually, if my menopausal staff get looked after better, they're going to stay at work and they're going to, I'm going to get more out of them as well. So there are reasons, aren't though? It's not just ticking a box and I find some companies maybe have, I know I've gone to talk to some companies and given an hour presentation to some of their senior management and they tick the box and say we've done menopause. And they sort of think, oh, that's it because it's just something about needing a fan.

But actually when you think about it more, actually the more employers that are involved and do understand, the more they can signpost or help their staff, the better their staff are going to be. And the more likely they're going to stay with them as well. Because it costs a lot of money, doesn't it, to invest in new staff if all your staff in their 40s, 50s are reducing their hours or going off or leaving their jobs. Exactly. And also the other thing is if as an organisation you are raising awareness, then it's not just raising awareness to encourage individuals where they have difficulties to come forward. As you said, a lot of people don't even realise that perhaps some of the symptoms that they are experiencing may be menopausal.

I mean, I know of people my age who don't recognise that some of the symptoms they've got may be menopausal. No, it might not be. I'm not a medic. But it could be one of a number of things. So by having a kind of open policy, then it might help individuals raise their own awareness and then say, well, actually I'm struggling with this, but it might be because of X, Y and Z, might be because of the menopause. Maybe I should just go and see my doctor, go and get specialist advice to see whether or not there's anything that can assist me in terms of managing that. But if the individuals don't know themselves, that that might be what their symptoms are.

So again, raising that awareness may help the employers by helping the employees help themselves. And what we've also got to remember is that, you know, the workplace isn't just full of women. You know, there are men whose other halves may be going through the men of wars. And they might want a bit more of understanding. So just from an employee relations point of view, that information might just help them on a personal level. But they might be struggling as well because they might be having someone at home who's really struggling. So when they come into work, they might be tired. You know, they might be struggling because they're having to take on more responsibility.

So they might want support as well, whether that's employee assistance program, whether it's just being able to speak to HR. So it's not necessarily a purely female issue in the workplace. No, you're totally right. And even for younger women might be thinking, oh, it's not for me. One of the administrators who work with us is only 21. And she is really realizing more and more how important it is to know, not just for her future, but also her mother, her auntie, you know, her friends' mothers.

And it's recognising it. And I think what I noticed working with Messer-Innes Police is there are a lot of women who were signed off work with depression, with migraines, with anxiety. And we did a survey in 78% of women didn't realize their symptoms were menopausal until they were given information. And actually they were quite relieved to know that they didn't have clinical depression. And they didn't have something else going on. And it was, you know, sometimes it's not even about getting treatment. It's just getting the right diet. diagnosis and like you say for a lot of men they were reassured and some people have said to me well

if you're making all this aware people are going to use the menopause as an excuse for forgetting something or not doing a good job and i certainly have never met a menopause a woman who doesn't want to help herself and get better so i don't think that would sort of stand up almost i don't know what your feeling is but certainly employers have really changed how they want to look after their staff. And I think the reason that menopause has been neglected is not because employers haven't wanted to. It's just they haven't thought about it and they haven't known how to engage. But I think the more companies that do involve, the better they feel, isn't it? It sort of has a ripple effect and a really positive effect on companies. Yes. And the other thing to consider is that many

companies also have occupational health support. So there's that available as well. So there's that available as well where further investigation may be required in terms of how best to assist individuals in the workplace and support them. And that will also, if someone isn't genuine, then you would expect that to come out in an occupational health report. But I think that may be a fear because there will always be a few employees, whatever category or arena or whatever who may overegg whatever their scenario is, regardless of whether it's menopause or whatever, but I think that's just human beings. Of course it.

And some people have said, well, I don't want to be, you know, labelled. I don't want to have a badge saying, I'm menopause or treat me differently. And I completely understand this as well. And certainly, when I was experiencing symptoms for far too many months than I should have done, I was struggling at work and feeling very tired and just fed up and finding it very difficult to remember. And then when I realised myself, I managed to receive the right help and treatment, so I never spoke to my employers about it.

But actually, if one of the receptionists says to me, Louise, do you think it might be hormones the way you're feeling? Goodness me, I would have hugged her because it would have stopped a few moments of symptoms. So it's about having a choice whether you want to bring it into work or not. And I think having a policy at work doesn't mean that every single men or pulls a woman has to engage with that, does it? No, but actually what you said, does it? flag up another kind of potential risk area in that the other situation is for employers to ensure that the workplace is free from harassment. So although in your scenario you might say it actually would have been helpful if the receptionist had said, you can also imagine the situation where

comments are made about people, not in a supportive basis, but oh, it's your hormones, it's your age, it's your time of life, which could amount to harassment. You know, if there are derogatory comments in the workplace about people going through the menopause, it might not specifically be referenced the menopause, but along the lines of, you know, it's that time of life, you know, you're having hot flushes, etc. Then you could be dealing with a situation of harassment, which is unlawful under the Equality Act, if it's unwanted conduct that has the effect of, or, or, purpose of violating that person's dignity. And that could be on the basis of sex, could be

the basis of age, or it could be if the menopause conditions mean that the individual is disabled, disability harassment. So again, that comes back to having that culture where people understand what the menopause is, but also what is and isn't acceptable to say. Yeah, and that's so important because menopause has always been a bust of jokes, hasn't it? You know, hormones are always a bit of joke. Oh, it's the time of month, like you say. But actually, menopause or woman, if you Google menopause woman cartoon, there's a lot of women with fans, with sweat dripping off them.

It's all very funny. But actually, for a lot of menopause or women, it's not funny at all. It could be very isolating. It could be very lonely. They have low self-esteem, low self-worth, confusion. And then for someone to laugh when you're feeling vulnerable, is horrendous. So it's really important. And for a lot of women, myself included, I see more of my work colleagues than I do have my husbands just because I work so hard. And it's good to be able to sometimes

open up and have a platform. But you don't want to do it if you're going to be judged. You know, what I wouldn't have wanted to have done is to tell one of the partners at work, I'm really struggling to remember the dose of an antibiotic I've prescribed for the last 20 years. And then then discipline me. made a mistake, but I had to check what I did so hard. So it is finding a balance, isn't it? Because you don't want people to make mistakes, but you want to help them so they know why they're making the mistakes, if you do it or potentially making mistakes. Exactly. And I think some environments are easier perhaps to be able to accommodate or be accommodated, you know, where someone

perhaps is in an office environment. It's a very different environment than someone who's working on the short floor. So yeah, it's a whole kind of worms really, isn't it? And it's just trying to unpick and help as many people as possible. And it's interesting because when you were talking about partners being affected, I did some work with West Midlands Fire Brigade. And most of them are men, but a lot of them are men in their 40s, some in their 50s. And the general feeling when I was talking to occupational health department was that they are seeing a lot of men who were stressed, who were having problems, maybe relationship problems. And a lot of men find it very hard when their partners have changed because they're not going home to the same person. They're maybe going home to someone

who's irritable, who's short-tempered, who's too tired to cook them supper if that's what they used to do for them. And a lot of men aren't actually getting sexual intercourse. And, you know, we're very British. We don't like talking about sex, but we know actually from some studies that men who have regular sex actually perform better at work. They're calm. So they're not going to go into work and say, you know what, I've not had sex for six months with my partner. And actually that has effects. And if they know that, oh, gosh, my partner's menopausal. It's not because they don't like me or don't love me or don't want to be with me.

That can make a big difference. And certainly patients I have whose partners have recognized their menopause have felt so wonderful that their partner is part of their journey with them. And so it shouldn't be a woman's only menopause discussion at work. I really feel strongly about that because it is so revealing. And actually, men, once they understand, can be even more compassionate in some ways than women. It's quite interesting seeing how people see it from a middle-aged woman with a fan condition to a really mental health condition, a physical condition, a condition that's associated. with health risks and a condition that can actually lead to a lot of women leaving their jobs.

No one wants any of their employees to lead their jobs because of something that could potentially receive treatment for. Exactly. And losing all that experience and knowledge and having to recruit someone else and train them up, isn't it? It's hugely time consuming and can be costly as well when it's something that might easily be addressed and by supporting the individual or being aware of what can be done perhaps to overcome the problems in the workplace. Yeah, absolutely. So no, that's really interesting and

really good advice and I'm sure a lot of food for thought, but many of you that are listening and I really appreciate your time that you've given up to record this today, Victoria. So before you go, would you be able to give me just three take-home tips for employers who are thinking about menopause and maybe just tips for how to get the conversation started and just some simple measures they might be able to help. Okay, so I think it depends in what scenario. I mean, as an organisation, it may be to put in place menopause policy and to communicate that to the workforce as a whole programme. I mean, it's quite glib just to say that. It has to be a well thought out process with training of people in a kind of supervisory management position so that they are

able to speak with the individuals, recognise the signs. But if, for example, you're in a situation where somebody is perhaps being performance managed or absence managed or even just on a return to work, it's just making sure that the conversation is open to enable that person to talk about any issues that might be impacting on their performance. You can't tell them what the reason might be, but to ask open questions, is there anything that might be impacting on your absence or performance that we need to know

or that we perhaps can support you with? And I think those are probably the two main issues, but there's a lot of sort of resources out there for employers, and whether a CIPD and ACAS. And for perhaps managers who aren't sure or supervisors, it's for them to speak to their HR teams to say, look, what should I do? How can I best support this individual?

I don't know whether the menopause may be an issue, but how can I enable this employee to come forward if that is the case? I don't know whether that answers the question. Yeah, no, brilliant. I think it's really good. And I think the most important thing is if a woman who's a working woman is listening, there are places to go for help and certainly speaking to HR, speaking to colleagues, even trying to implement something in your own workplace if there's nothing there.

And for employers, I think hopefully listening to this has made them realize that the menopause really needs to be thought of seriously to help their employees, both male and female. So thank you very much, Victoria. It's been great. Thank you for having me, Louise. For more information about the perimenopause and menopause, you can go to my website, menopause.com, UK, or you can download our free app called Balance, available through the App Store and Google Play.