My Lord, please may we stand down for 10 minutes? I am having a Hot Flush! Quarter 1 2022

By DEIRDRE VENTER, Published in Employment Law

So many women I've talked to see menopause as an ending. But I've discovered that this is your moment to reinvent yourself after years of focusing on the needs of everyone else. It's your opportunity to get clear about what matters to you and then to pursue that with all of your energy, time and talent." – Oprah Winfrey

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My personal experiences with a diagnosis which, like death and taxes, is a certainty for all women on earth, inspired me not only to get a better understanding of the condition, but also made me question whether women are given support by their employers in their workplaces, which even now are still predominantly male.

It should not have come as a surprise. I have an adult son who has just finished school and is off to college soon. My daughter is entering her teenage years and is starting her High School journey. I am no spring chicken, even though, most days, I behave as if I am still twenty. Being told I am in menopause and that I will never be able to naturally conceive again came as a shock. I do not want more children – been there, done that, worn the T shirt with an overdraft to boot. But the message that I am getting old, that is what hurt. I cried.

And it all made sense too. The random anxiety, the explosive tempers, the sudden onset of extreme irritation, the night sweats, and counting sheep at two in the morning. The weight gain, dry eyes, headaches, the brain fog (forgetting where I put my glasses or where I was going to do what), and the worst symptom of all – the hot flushes. They come suddenly, last only a few moments but have the ability to turn me, without warning, from a calm, happy mother, wife, colleague and lawyer into a raging bull with one purpose in life, and that is to take down anything that comes in my way.

I was in denial, and now sitting in my gynae's consulting rooms, I had to confront the menopause. I also had to make the possibly life-changing decision about whether I would join the CHRTC (Controversial Hormone Replacement Therapy Club).

After digesting my gynae's abbreviated version of decades of studies of the risks of HRT, some introspection and research, I decided to buck my mother's trend and join the CHRTC. I turned to the little patch which daily feeds my body small doses of estrogen and progesterone. A few weeks have passed, and the tiny, discreet patch of hormones has worked its magic. My sanity is returning, the hot flushes are gone, my flock of sheep and I sleep at night, and it now takes an army to get my irritation levels into the red.

This change of life experience made me wonder about all the menopausal women in the world who, like me, are happy and content with their careers, and have reached the stage in their working lives where they are actually good at their jobs, not only because they have 20 plus years' experience, but because the kids are grown up and independent. We have more time to be at work, doing what we do best, without the burden of school drop offs, extra curriculars and endless paediatrician appointments (because the noses just do not stop running!) Women have the right to make decisions about their bodies and health. Many women decide, for personal reasons, not to get on the CHRTC Train like I did. Having experienced the symptoms of menopause, I wonder how these brave women cope whilst at work.

The world's working population is aging. Menopausal women are the fastest growing demographic in the workplace. Is this not reason enough to start a conversation with employers about what support can be offered to women in menopause who, while rendering their loyal and long services to their employers, are struggling with not only the emotional aspect of getting old, but are experiencing the awful symptoms of menopause.

Do we, the menopausal working women, not have a duty to raise awareness of the struggles of being the over 40s in the workplace. Has the time not come where the quadragenarians (Word of the Day!) should be asking their employers to engage with them on the hot potato that even women shy away from and find uncomfortable to mention?

Menopause is not a fleeting illness or condition. Perimenopause, which precedes menopause, can last for four years of a woman's life. When a woman reaches the stage in her life when she no longer menstruates (the only positive of menopause) and exits perimenopause, instead of smooth tamponless sailing, women face, on average, 7.4 years of symptoms such as hot flushes, night sweats, sleep disturbances, mood swings, attention problems, dry skin, thinning hair, headaches, joint and muscle pain, dry eyes, focus and memory issues, and others not to be mentioned here.

Most women will reach the transition from perimenopause into menopause in their late forties, early fifties. Employers could have menopausal women in their workplaces for the full duration of peri-menopause and menopause, and even into their post-menopausal phase before retirement.

The United Kingdom has recently seen a spike in cases referred to the Employment Tribunals where women are challenging their dismissals and treatment by their employers on the grounds of menopause being a disability and a protected characteristic of being female.

As recently as January 2022, the Employment Tribunal in L Best v Embark on Raw Limited upheld Best's claim of harassment and victimisation. Best, 52 at the time, claimed that she was harassed when her employer, Mr Fletcher, made derogatory comments "that she must be on her Menopause" and that her husband would start looking "at younger women now". The Employment Tribunal regarded these comments as victimisation and harassment on the grounds of her protected characteristics of age and sex.

On 7 October 2021, the Employment Appeal Tribunal in Ms M Rooney v Leicester remitted the question of whether Ms Rooney was a disabled person to the Employment Tribunal. Ms Rooney, a childcare social worker, resigned after 12 years' employment and claimed constructive dismissal on the grounds of disability and sex discrimination. Ms Rooney alleged that she was discriminated against when, inter alia, her supervisor, Mr Tingley, responded to her comment that she was suffering from hot flushes with a comment that he too gets hot in the office, and issued her with a formal warning for sickness absence due to work stress. Her hearing was held before four men, and she was refused a female doctor for her Occupational Health assessment.

A disability is defined in the Equality Act 2010 as a physical or mental impairment that has a substantial and long-term adverse effect on a person's ability to carry out normal day to day activities. "Long term" is defined as an impairment that lasted or is likely to last for at least 12 months, or is likely to last for the rest of the person's life.

The Employment Appeal Tribunal held that, in light of Ms Rooney's evidence (which was unchallenged) that the menopause symptoms of night sweats, anxiety, fatigue, urinary problems, poor concentration, hot flushes, sleep disturbance and headaches were physical impairments which had lasted for over 12 months, and which had had an effect on her day-to-day activities, the Employment Tribunal had erred in holding that Ms Rooney was not a disabled person at the time.

In February 2021, in A McMahon v Rothwell & Evans LLP, the Employment Tribunal, in a unanimous judgment, held that Ms McMahon had suffered from severe Perimenopausal and Menopausal symptoms since 2017 and met the definition of disability on the basis of cumulative effect. The Tribunal held that while her symptoms considered individually were insufficient to meet the test of being "more than minor or trivial", the cumulative effect of her symptoms when considered together produced a substantial effect, in that "the nature of this particular impairment is unpredictable, sometimes severe, sometimes not….". Ms McMahon was, however, unsuccessful in showing that her disability was the reason for her dismissal.

In December 2020, the Employment Tribunal in Daly v Optiva held that the claimant, a 51 year old woman who suffered from extreme symptoms of menopause which affected her daily living, was a disabled person by reasons of symptoms of menopause. A similar finding was made in August 2020, in the case of Donnachie v Telent Technology Services Limited.

In December 2019, in A v Bonmarche Limited (in Administration), the claimant, a supervisor with 37 years' experience, was subjected to offensive, demeaning and humiliating remarks related to her being menopausal. The employer refused to accommodate her condition when she asked for the temperature in the workplace to be adjusted. The Employment Tribunal held that Mr CB had treated the claimant less favourably than he would treat somebody who was not a female in menopause, and that his comments were related to her status as a woman in menopause. She was awarded £27,975.00 in compensation.

In April 2018, the Scottish Employment Tribunal in Davis v Scottish Courts and Tribunal Services awarded Ms Davies, a court officer, reinstatement, £14,009.84 in back pay, and £5,000.00 in damages for injury to her feelings when it found that Ms Davies' dismissal was in consequence of her disability, being the onset of menopause, which resulted in heavy bleeding, severe anemia, confusion, emotional distress and lack of concentration.

The UK regards menopause as a disability – will the South African employment tribunals follow suit? The Employment Equity Act defines disability as a long term or recurring physical or mental impairment which substantially limits a person's prospects of entry into or advancement in employment. The focus when assessing whether a condition is a disability is not the diagnosis, but the effect of the disability on the person in the working environment. It could be contended that, as women totally lose their bodily functions of production of hormones, ovulation and conception, menopause is a physical, long-term impairment lasting longer than 12 months. Whether the menopause is substantially limiting to meet the test for a disability will depend on the severity of the particular claimant's symptoms, and whether the symptoms substantially limit the claimant's ability to perform the essential functions of her job. Each case would have to be assessed on its own merits.

In terms of the Code of Good Practice: Key Aspects on the Employment with People with Disabilities, any assessment to determine whether the effect of an impairment is limiting must consider whether the impairment can be easily controlled, lessened or corrected by medical treatment which will remove or prevent the adverse effects.

Could it be argued that HRT is a medical treatment that easily controls or lessens the effect of menopause, and that as there is such a treatment available, menopause cannot be regarded as substantially limiting? What about the women who decide not to become lifetime members of the CHRTC, will they be compromised in the assessment of whether their menopausal symptoms are substantially limiting? Could it be argued that because menopause is a characteristic of being female, any harassment or victimisation of a woman because she is experiencing symptoms in the workplace is prohibited? Only women suffer from menopause. Who will the hypothetical comparator be? Someone of the opposite sex, or another female of childbearing age or one who falls outside the 45-55 age group?

There are no awards or judgments from the South African employment tribunals dealing with these questions yet. It is only a matter of time. Employers will be challenged when offhand comments in the office aimed at hot flushing women offend, and when, due to a lack of support and understanding of the symptoms from employers, menopausal women are treated less favourably than the energetic and youthful 30-somethings.

Our commissioners and judges may soon be asked to dive into the embarrassing and uncomfortable topic of a woman's femininity, reproduction and hormones. The odds of the presiding officer being male are good. I hope that when a courageous woman takes on the battle of menopause in a court of law, the decision-maker will be one of us.

Venter is a Director of Shepstone & Wylie.