Employees do not currently have any dedicated legal rights protecting them from discrimination or harassment in the workplace as a result of menopause and its associated symptoms.
Instead, they need to rely on proving that any discrimination or harassment is unlawful because it falls within the scope of the existing provisions for protected characteristics set out in the Equality Act 2010; usually relying on protection from disability, age or sex discrimination.
What is the government’s current position on menopause and the workplace?
The government is currently exploring “what works to improve women’s reproductive health” in the workplace as part of the Women’s Health Strategy. This lead to an Inquiry that examined the extent of discrimination faced by women experiencing menopause in the workplace and how government policy and workplace practice can better support these employees.
Brabners LLP and in particular our Reproductive Health team are proud to have contributed towards these inquiries and to be named in the Women and Equalities committee first report on 28 July 2022 relating to Menopause and the workplace (‘the Report’).
The Report notes that claims relating to menopause must at present be “shoehorned” into existing protections for age, sex and/or disability, but that these protected characteristics alone are not always adequate.
For example, the Report outlines that for a direct discrimination claim, identifying an actual or hypothetical comparator is likely to be difficult, as the comparator would essentially be a male colleague with an “illness” that is unlikely to be inevitable like menopause, or has the same potential clinical and mental impact.
Similarly, with age discrimination, this could result in gaps where employees may be perimenopausal or go through menopause earlier than expected. It is a common misconception that menopause only affects “older” women and in fact, the NHS states that this usually happens between 45 – 55 but it can in some cases take place much earlier.
The Report also echoes that claims under disability discrimination are neither “desirable nor straightforward”.
It cannot be ignored that the Equality Act 2010 is a well-established, yet outdated piece of legislation and the Report suggests that many organisations, including a wealth of legal practitioners, agree that reform is required.
Unfortunately, the government’s response to these issues so far is that “the government does not believe that changes to the Equality Act 2010 are needed”. This is apparently based on the view that there have been a number of cases that have been successfully pursued using the existing protected characteristics of age, sex or disability. Minister Scully also stated that the government’s view is that changes to existing legislation “may well provide an unhelpful distraction for employers from what they actually should be doing, which is complying with the existing law and familiarising themselves with the guidance”.
What does this mean?
In light of the government’s response and despite the findings of the Inquiry, it seems unlikely that there will be any major legislative reform in the foreseeable future to provide greater protection and guidance to both employers and employees in regard to menopause and the workplace.
In the meantime, the government has confirmed that:
- The Minister for Employment will appoint one or more Menopause Employment Champions to give a voice to menopausal women;
- It will be educating work coaches on the impact of menopause so that they are better equipped to understand the barriers faced by those experiencing menopause, irrespective of age;
- It will explore whether there is an appropriate methodology and share this if and when complete, that can be developed to help quantify the cost of menopause to individuals, businesses, health services and society;
- It will also consider a public health campaign, promoting the understanding of symptoms, breaking taboos and signposting individuals to help if they are experiencing menopause;
- It will raise awareness and promote best practice amongst employers and encourage the development of support within their organisations by providing links to advice, guidance and best practice case studies;
- It will provide additional support to employers for women’s reproductive health issues within the workplace, including menopause, through the Health and Wellbeing Fund; and
- It will consider how the menopause transition can be integrated into mid-life MOT’s.
Conclusion
The government’s stance, whilst helpful, raises a number of questions that are yet to be answered. It remains our view that menopause would benefit from being a protected characteristic in its own right (analogous to pregnancy/maternity). We have discussed some of the problems with protecting employees under the existing legal provisions in our series of podcasts on Menopause in the workplace, between Thomas Wood, Barrister at St John’s Buildings and Trishna Modessa-Parekh, an Associate in the Employment and Reproductive Health team at Brabners.
Although the response is not what many were hoping for, the government has indicated that they intend to provide both employers and employees with further support in managing menopause in the workplace.
Whilst we await the government’s contributions, we would encourage employers to consider what more they can be doing in their workplace, such as raising awareness, breaking the taboo, making adjustments, providing additional support, reviewing existing policies and procedures and providing training to managers. In the current economic climate, there is a clear business case for investing in retaining menopausal employees, rather than risk losing significant talent (10% of women according to a survey by the Fawcett Society and Channel 4 or up to 1 million women according to Research without Barriers).
Our Reproductive Health team, featuring a number of colleagues from our award-winning Employment team are experienced and well versed at advising both employers and employees on discrimination issues in the workplace and supporting employers to implement changes in their workplace to better support employees with their reproductive health.
This article contains a general overview of information only. It does not constitute, and should not be relied upon, as legal advice. You should consult a suitably qualified lawyer on any specific legal problem or matter.
