Breaking the Silence: Acknowledging Menopause in India's Gender-Inclusive Workplace
Legal Landscape of Menopause in the Workplace
In a legal case, Davies v. Scottish Courts and Tribunals Service,1 the claimant's menopausal symptoms caused her to be forgetful, leading to her dismissal from work. However, the Tribunal acknowledged that menopause can be considered a disability under the Equality Act, 2010, and her dismissal was disproportionate to her action. The Tribunal duly noted:
“[t]he claimant experienced, over the last 2 – 3 years, the onset of menopause which resulted in very heavy bleeding (generally referred to as flooding). The claimant became severely anaemic due to the heavy bleeding, and also felt ‘fuzzy,' emotional and lacking in concentration at times.”2
As a result, the Hon'ble Tribunal not only reinstated all rights and privileges, including seniority and pension rights to the claimant but ordered the respondent to pay the sum of £14,009.84 in respect of 5 the (net) arrears of pay for the period between the date of termination of employment (21 June 2017) and the date of reinstatement (20 June 2018).3 Moreover, the Tribunal asked the Respondent to make an award of injury to feelings i.e., £5,000.4
Similarly, in the case of Merchant v. BT plc,5 Ms. Merchant was terminated from her employment by BT plc after receiving a final warning for poor performance. Prior to her dismissal, she had given her manager a letter from her doctor stating that her menopausal symptoms could impact her concentration levels. Despite this, the manager did not carry out any further inquiries into her symptoms, which was in violation of BT's performance management policy. The Employment Tribunal found in favour of Ms. Merchant, holding that her dismissal constituted both direct sex discrimination and unfair dismissal. The tribunal also concluded that the manager's approach towards her condition was irrational and would not have been applied to non-female-related conditions. Additionally, the manager improperly used his wife's experience as evidence in relation to his employees, which is a common occurrence for women in the workplace who make flexible working requests during their pregnancy.
In general, the UK is seeing an increasing number of claims relating to unfair dismissal or direct sex discrimination as a result of management reactions to menopausal women.6 More recently, in A. v. Bonmarche Limited (in administration),7 an employer made insensitive comments about the claimant's menopause and refused to make adjustments such as temperature changes to allow for increased comfort.8 The court held that such behaviour amounted to sexual and ageist harassment under the Equality Act, 2010, and the creation of a hostile work environment.
The cases discussed in the previous discussion, set the call more aware and inclusive dialogue about the menstrual and menopausal health issues at the workplace. Relators indicated that employers and managers must be informed of the problems that affect women in such stages of their lives and that they are trained to deal with such cases with due respect and understanding. Employers would also benefit from creating an environment that is understanding to the needs of employees in that the company would experience less employee conflicts and therefore be more efficient and productive.
Menopause-Related Legal Regime in India
Consequently, legal practices relating to treatment of menopausal women has been under the provisions of Equality Act of 2010 in United Kingdom. Unfortunately, there are no such precedent cases in the public domain in India that can be enunciated for an understanding of how best to deal with such cases, which necessitates the authors of this research paper to propose a probable framework.
Firstly, the POSH Act could be resorted to that allows women, who have been subjected to sexual harassment, to file legal claims against the perpetrator where a hostile work environment has been built or detrimental treatment given. Some of the conduct that may amount to sexual harassment according to the Handbook on Sexual Harassment of Women at Workplace includes but not limited to making remarks or telling jokes of a sexual nature, making statements that are likely to negatively affect one's reputation or career, monitoring in a manner that is not warranting, attributing of errors unfairly, insulting or humiliating someone.
Secondly, despite the formulation of comprehensive regulations governing occupational diseases and dangers, there does not exist a general policy on covering non-communicable or extended diseases, and health issues that require prolonged adaptation at the workplace.
Secondly, although comprehensive regulations have been made for occupational diseases and hazards,9 there is no overarching policy to address non-communicable or chronic diseases and health problems requiring long-term adjustments in the workplace. Specific sectoral regulations, including but not limited to the Plantation Labour Act, 1952,10 Working Journalist and Other News Paper Employee's (Conditions of Service) and Miscellaneous Provisions Act, 1955,11 and Sales Promotion Employees (Conditions of Service) Act, 1976,12 provide provisions for sick or medical leave. But, no laws make or recommend employers to adapt accommodations for women with menopause or others with recurrent issues such as arthritis, endometriosis, thyroid disorders, depression, PCOD and many others. This is important because the physical and psychological elements at the workplace have been cited to influence menopausal symptoms; in the worst cases, exacerbating them.13 Although general statutes for labour welfare and disputes exist, such as the Industrial Disputes Act, 194714 and the Code on Social Security, 2020,15 there is no specific regulation for workplace adjustments for chronic health issues.
From a legal standpoint, it can be supposed that there is no law on the books which directly addresses discrimination linked to the management of the menopause transition, however, the governmental Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ( POSH Act) and Industrial Disputes Act, 1947 (ID Act) could be applied to potential cases like Bonmarche, However, strong modifications are required at the workplace level to increase awareness of and sensitivity. The adoption of affirmative measures might help to reduce hate towards issues associated with woman's physiology. These policies can also be of economic importance by allowing specialisation in Health Insurance policies and even by extending the term of employment of women employees.16
Conclusion and Recommendations
A rather obvious point that must be made is that both workplace policies, culture and legislation in India continue to remain largely shaped by men, even if they appear to be ‘gender-blind'. This is evident from the fact that implementation of some policies that are meant to address working women's issues is still a matter of contention,17 the Maternity Benefit Act of 1961 being a case in point; the issue of menstrual leave for women at work still being.18
It is a physiological event that occurs when a woman is past the age for childbearing and lack of menstrual periods and 50 percent of the world's population of women experience this condition. Nevertheless, it becomes a question of embarrassment and silence at the workplace, and yet, when in menopause, women are even at the peak of their careers and often transferred to higher leadership positions between the ages of 45 to 55 years.
Researchers indicate that severe menopause symptoms like depression, anxiety, poor sleep quality, and poor cognitive function affect one in every four women, as conducted by the Society for Endocrinology. Menopause span which ranges from 7 to 14 years further compounds its manifestation with symptoms and career demands.
It is specifically working-age women who find it terribly difficult to report symptoms of menopause, and the outcomes of such a course of action are dangerous, including developing doubt in one's abilities, anxiety, and missing out on potential career advancement. There are even some women who are dismissed from their working places because they hardly cope with the terrible symptoms. This could attribute to ageism where many companies fail to factor corporate health policies for menopausal women. Employer often have a concern for hiring and providing for the medical needs of older individuals. In addition, the public and especially workplaces still lack information regarding menopause and those that exist contain misinforming information that continue to enhance the creation of the taboo, notwithstanding deterring women from coming forward complaining about their ordeal.19
However, it is crucial to begin talking about menopause in the workplace because the problem must be addressed at least at the awareness level. But if the employer offers to adopt a menopause policy, it would ensure that the boss reminds the employees that menopause is not a taboo, defines it and its impact on people, as well as possible support to employees. However, in addition to the much desired legislation amendments, which continues to be a mirage though essential, other changes though small in nature and requiring requisite awareness in the society can also go a long way. For instance, employers could assign a staff-employee a “menopause champion” who would be responsible for implementation of the policy. This does offer a really useful approach to help to reiterate the behavioural expectations in the workplace for employees and employers if a member of staff has symptoms of the menopause. Moreover, although it is not mandatory for businesses to have a menopause policy at this point, they should be heading toward incorporating one.
Furthermore, the masculinized workplace should promote the welfare of women transitioning through menopausal stage. Through offering flexibility in the working conditions, developing a good working environment, and enhancing the understanding of the management of menopausal symptoms, female employees can be accommodated well at work. This aspect of women's life cycle is an ordinary and unavoidable process, and it is crucial to have an understanding employer who welcomes women of all ages and stages in each workplace.
Employers can also try to help women who are going through menopause through flexibility at work, teleworking, and company information. Framing menopause as a definite workload issue means that organizations stand to gain on the matters of productivity, organizational culture and the profitability aspect of the business.
Female Political Leaders or females at higher civil and political positions can help reduce stigma of the problems common in menopause by speaking out. Other ways of ensuring that people acquire correct information on the process of menopause include gathering information from reliable medical centers that can also assist in demystifying odd information on the process.
In addition, including menopause in other policies will pave way in demystifying menopause and therefore eliminate prejudice against ladies undergoing the change of life. That is something millions of women are experiencing on a daily basis. Other examples of normal facts of life that working environments should accommodate through positive provisions include one's ability to contract a flu like illness and thus getting sick and needing a couple of days at home off sick or being a carer thus the ability to work sometimes at home, should now include menopausal experiences.
Conversely, awareness concerning the menopause and its impact is one of the most efficient methods to combat stigma. Employers can consider sharing information on menopause through workshops, webinars, and discussions so that employing entities develop cultural competence on menopause and its impact on affected persons. If these changes are implemented in the large organizations then this will act as a precedent for the small companies where the change can be implemented much easier.
Furthermore, risk assessments across employees (including home-based workers) will establish whether the menopause worsens employees' symptoms and whether adjustments should be made. Even relatively small alterations may therefore dramatically improve the staff situation. Some of the measures that can be taken by employers to enhance the working environment inclusively the provision of, fans and good ventilation, controlling the climate, providing clean and adequate toilet facilities near working areas with proper sanitary disposal bins and female necessities like sanitary wares, and lastly, if possible the availability of women-only showers.
Thirdly, the levels of sympathy, knowledge and support exhibited by medical as well as social care professionals have to be higher. The aforementioned should be led by the government starting with its internal practices and policies. Thus, although the provision of menopause leave might remain outside the sphere of legal regulation in the nearest future, employers should respect their clients and provide safe working conditions for workers going through this phase of their life.
Employers have the responsibility to make sure women experiencing menstruation or menopausal issues do not suffer because of their condition at the workplace. This can only be done if we increase consciousness, and if there is willingness to make some adjustments for women who may be dealing with such illnesses. In conclusion, menopause is an issue that affects a significant portion of the workforce, and it is time for organizations to recognize and address its impact on women's careers. Creating an open and supportive workplace culture that acknowledges and accommodates menopausal symptoms can help women thrive in their careers, contribute to the company's bottom line, and break down the taboo associated with menopause.
Footnotes
1. Davies v. Scottish Courts and Tribunals Service, S/4104575/2017 (Employment Tribunals, Scotland).
2. Id. at ¶ 7.
3. Id. at ¶ 161.
4. Id. at ¶ 162.
5. ET/1401305/11 (Employment Tribunal).
6. Matt Lamy, Dramatic Rise in Menopause Cases at Employment Tribunals, IOSH Magazine (Sep. 6, 2021), https://www.ioshmagazine.com/2021/09/06/dramatic-rise-menopause-cases-employment-tribunals.
7. A. v. Bonmarche Limited (in administration), Case No: 4107766/2019
8. Id. at ¶ 5.
9. Occupational Safety, Health and Working Conditions Code, 2020, No. 37, Acts of Parliament, 2020 (India).
10. Plantation Labour Act, 1952, § 32, Act No. 69, Acts of Parliament, 1952 (India).
11. Working Journalist and Other Newspaper Employees (Conditions of Service) and Miscellaneous Provisions Act, 1955, § 7, Act No. 45, Acts of Parliament, 1955 (India).
12. Sales Promotion Employees (Conditions of Service) Act, 1976, § 4, Act No. 11, Acts of Parliament, 1976 (India).
13. Petra Verdonk, supra note 3.
14. Industrial Disputes Act, 1947, No. 14, Acts of Parliament, 1947 (India).
15. Code on Social Security, 2020, No. 36, Acts of Parliament, 2020 (India).
16. Bhavyakirti Singh, Gender Consciousness in the Workplace: Taking Stock of India's Menopausal Workers, JILS Blog (Sep 1, 2022), https://jils.blog/2022/09/01/gender-consciousness-in-the-workplace-taking-stock-of-indias-menopausal-workers/#_ftn18.
17. Shashi Bala, Implementation of Maternity Benefit Act 09-10 (V.V. Giri National Labour Institute, 2012).
18. PTI, Zomato introduces ‘period leave' for employees, The Hindu (Aug. 09, 2020, 01:15 PM), https://www.thehindu.com/news/national/zomato-introduces-period-leave-for-employees/article32308642.ece.
19.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.