By Grace Molloy
Every time I think about the first menopause‑leave test case, Phil Collins starts up in my head: ‘I can feel it coming in the air tonight’. But unlike in The Hangover, Mike Tyson won’t be the one who’ll wake up needing a Bloody Mary – it’ll be the manager who stuffed up the conversation.
It’s only a matter of time before an Australian employer is taken to the Fair Work Commission or a human rights jurisdiction over the way menopause, menstrual health or reproductive health leave has been implemented. Not because these entitlements are a bad idea, but because too many organisations are launching progressive policies without giving managers the support, training or guidance needed to administer them fairly and lawfully.
The pattern is already visible.
Employers are under increasing pressure to respond to the workplace impact of menopause, perimenopause, menstruation, fertility treatment, endometriosis, pregnancy loss and other reproductive health needs. That pressure is producing a welcome wave of new policies and leave entitlements, but in many workplaces the policy arrives long before the capability to use it properly.
Why the legal risk is obvious
Australian law already provides multiple pathways for a claim if a manager mishandles one of these conversations. Under the Fair Work Act, a person can bring a general protections claim where adverse action is taken for a prohibited reason such as their sex, age, disability, family or carer’s responsibilities, pregnancy or gender identity.
State and federal anti-discrimination laws also create avenues for claims where a worker is treated less favourably harassed, or victimised due to a protected attribute or denied reasonable adjustments because of symptoms or related health needs due to a disability or health condition.
That matters because menopause and reproductive health issues do not sit neatly in one legal box.
Depending on the facts, a worker might frame a complaint as sex discrimination, age discrimination, disability discrimination, gender identity discrimination, adverse action for exercising a workplace right, or unfair dismissal following a badly handled performance process.
In other words, the legal routes already exist; what is missing is the test case that brings them together in the context of these newer leave entitlements.
The implementation gap
The implementation gap is where claims will emerge. Guidance from menopause workplace resources consistently stress the need for manager training, sensitive conversations, clear policy processes and practical workplace adjustments. The Australian Public Service has similarly emphasised that leaders and managers are responsible for making staff aware of support measures and creating environments where people can have safe and sensitive conversations.
More broadly, national guidance continues to reiterate that managers are central to creating safe, supportive environments for employees experiencing perimenopause and menopause, a responsibility many agencies and employers are only beginning to resource properly.
A leave policy without manager guidance is not a safeguard, it is a liability waiting to happen.
How the claim will likely arise
The most likely case will not begin with a dramatic legal dispute. It will start with an ordinary workplace conversation that goes badly wrong.
Think of an employee who discloses severe menopause symptoms and asks for menopause leave or temporary adjustments. The manager responds with scepticism, minimises the issue, questions whether the symptoms are “real”, or suggests that the employee is no longer up to the job. A few weeks later, the same employee is performance-managed, denied promotion, or dismissed. At that point, the leave policy that appeared progressive on paper becomes part of the evidence against the employer. Why? Because it shows the organisation knew these health issues existed, implemented a policy to address them and yet failed to equip managers to respond properly to these issues.
A second version is just as plausible.
An employee seeks reproductive health leave for endometriosis, fertility treatment, menstruation, perimenopause or menopause and provides what the policy calls “reasonable evidence.” One manager accepts the certificate immediately, another demands invasive detail, refuses the request, or tells the employee to use annual leave instead.
If the different treatment is linked to a protected attribute such as sex, age, disability, pregnancy or gender identity, the ingredients for a discrimination claim are already there.
Why unfair dismissal is a real possibility
Unfair dismissal risk is especially acute because unsupported health issues often morph into performance narratives. Sleep disruption, brain fog, chronic pain, heavy bleeding, anxiety and fatigue can all affect attendance, concentration and confidence at work.
If a manager treats those signs solely as performance-related issues instead of recognising a disclosed health issue, the employee can quickly end up on a warning, a performance plan, or out the door.
Once a dismissal occurs, the employer may have to explain why it ignored known health-related factors, why it failed to consider available leave or adjustments, and why the manager was allowed to make decisions without proper training.
A tribunal or commission does not need a dedicated “menopause leave claim” category to find the process unfair or discriminatory. Existing law is more than capable of doing that work.
Why discrimination claims are even more likely
Discrimination risk may arise even before dismissal. Menopause and reproductive health conversations are loaded with stigma, stereotype and discomfort.
A manager who makes jokes, expresses disbelief, asks intrusive questions, denies leave inconsistently or treats some requests as more “legitimate” than others can create a strong basis for a complaint.
The same applies to gendered implementation. Some reproductive health leave schemes are explicitly gender-blind, covering conditions including menstruation, perimenopause, menopause, fertility treatment and screening regardless of gender.
If managers overlay their own assumptions about who should qualify, who is “really” entitled, or what evidence is acceptable, employers will be exposed to exactly the kind of claim that modern anti-discrimination law is designed to catch.
What employers should do now
As long as Phil Collins keeps ringing in my ears I’ll keep banging on that progressive policy is only half the job. The other half is manager capability.
If employers want to avoid being the test case, they should act now:
- Train managers on menopause, menstrual health and reproductive health as workplace issues, not just personal issues.
- Create workplace champions as escalation pathways and to support people who may be hesitant to speak directly to their manager.
- Give clear guidance for sensitive conversations, evidence requests and confidentiality.
- Explain the legal overlap with sex, age, disability, pregnancy and gender identity protections as part of manager training.
- Audit how leave requests, adjustments and performance concerns are actually being handled in practice.
The organisations most at risk are not the ones doing nothing. They are the ones doing just enough to announce a policy, but not enough to ensure it is applied safely.
Why I think this is inevitable
I do not say this to be alarmist. I say it because the ingredients are already in place: new entitlements, inconsistent manager capability, strong stigma, clear statutory protections, and employees who are increasingly aware of their rights.
When those factors combine, litigation is not a remote possibility; it is, like the final photo reel in The Hangover, the messy but entirely predictable ending to a night where all the warning signs were there from the start.
The first employer on the receiving end will probably say they had good intentions. They may well be telling the truth. But good intentions will not protect an organisation if a manager turns a leave request into humiliation, a disclosure into a performance problem, or a health need into a dismissal.
That is why I believe the case is coming, and why employers should treat training, education and guidance for managers as urgent risk management, not optional culture work.
About Menopause Friendly Australia
Menopause Friendly Australia is the leading provider of menopause workplace services and the home of The Menopause Friendly Accreditation – the only independent mark of excellence for menopause at work. Through membership, accredited training and practical resources, Menopause Friendly Australia helps organisations design inclusive policies, upskill leaders and create cultures where people experiencing menopause can thrive, not just cope.
