UK Discrimination Protection’s New Frontier: The Future Legal Landscape for Menopause at Work

In its report on menopause in the workplace, the UK House of Commons Women and Equalities Committee recommended that menopause be considered a protected characteristic under Section 14 of the Equality Act. In the meantime, there are a number of steps employers can take to protect employees experiencing menopause in the workplace.

With World Menopause Day approaching on 18 October, it is an opportune time to reflect on the huge strides made in the United Kingdom and globally regarding menopause awareness and support. People are increasingly willing to speak openly about menopause and its impact on all aspects of life, including at home, with family and friends, and at work. Employers are recognising the role they play in supporting employees experiencing menopause, and the government has taken steps to consider how far this should go.

On 28 July 2022, the House of Commons Women and Equalities Committee (the Committee) issued its report “Menopause and the workplace” (the Report). With a large and increasing proportion of the workforce suffering often-debilitating menopause symptoms, the Report is an important step in promoting greater support for those individuals.

The Report cites many problematic symptoms of menopause, including difficulty sleeping, loss of concentration, hot flushes, stress, and anxiety or depression. Compounding these symptoms, the Committee found a lack of support and discrimination affecting menopausal women. Despite the relatively low number of UK Employment Tribunal cases mentioning menopause, the Committee heard that menopause-related discrimination was widespread. This culminated in sickness absences, reduction in hours and ultimately talented employees leaving the workplace.

As a result, the Report recommends a number of progressive steps to provide greater protection for those employees in the workforce who are experiencing menopause symptoms. The most significant of these is the immediate bringing into force of Section 14 of the Equality Act 2010, which provides for discrimination claims based on a combination of two relevant protected characteristics (such as being an older woman). The Committee further recommends that consultation be undertaken with respect to making menopause a new protected characteristic in its own right. In the meantime, there are a number of steps that employers can and are encouraged by the Committee to take to protect women and all people experiencing menopause in the workforce.

IMPLEMENTING CHANGE IN THE WORKPLACE

As well as the personal costs for affected individuals, there are many other costs of failing to support menopausal employees, from loss of talent and replacement recruitment costs to the impact on the wider economy.

The Committee concludes that there is a legal, economic, and social imperative to address the needs of menopausal employees. While the Committee was not persuaded that a legal requirement for every workplace to have a menopause policy would embed meaningful change, it did consider that there was much that an employer could do.

The Report sets out a number of best practice examples, including the fact that over 800 employers have signed up to the Menopause Workplace Pledge created by the women’s health charity Wellbeing of Women. Other initiatives included appointing menopause champions, introducing menopause-related training to increase awareness, and addressing uniform and equipment issues such as menopause-friendly uniforms and access to fans in order to help regulate temperature.

The Committee also concludes that the government has a key strategic role in supporting businesses and developing and disseminating good practice. The Report recommends that the government:

• Appoint a Menopause Ambassador to work with business stakeholders, unions, and advisory groups to encourage and disseminate good practice. The Menopause Ambassador should also publish a six-monthly report on progress made, with examples of good and poor practice.
• Produce model menopause policies to assist employers.
• Develop and pilot with a large public sector employer a specific “menopause leave” policy and provide an evaluation of the scheme and proposals for roll out within 12 months of commencement of the scheme.
• Bring forward legislation before the end of the current Parliament to make the right to request flexible working a day-one right for all employees.

The Committee also recommends that the Health and Safety Executive and the Equality and Human Rights Commission publishes guidance on supporting employees experiencing menopause within the next six months.

ADDRESSING THE CURRENT LEGAL CHALLENGES

Currently, menopause is not a protected characteristic under equality legislation, but discrimination, harassment, and victimisation claims related to menopause could be successful on the grounds of sex, age, or disability. The Committee heard concerns that menopause-related claims were being “shoehorned” into the existing characteristics of age, sex, and/or disability. A number of potential limitations with this approach were identified:

• The requirement for a comparator for direct discrimination makes it difficult to argue menopause as direct age or sex discrimination. The report described the need for a woman experiencing menopause essentially to compare herself to a man with an illness as “wrong” and “demeaning.” Similarly, with age discrimination, a claimant must demonstrate that a younger employee has been treated more favourably, which is difficult for a claimant who has experienced early menopause.
• The existing legal framework gives rise to challenges in arguing indirect sex discrimination where the claimant has been penalised for a menopause-related absence, as the employer may assert the use of the sickness absence policy was a proportionate means of achieving a legitimate aim, with attendance requirements set to accommodate the needs of men.
• Most menopause claims are argued on the basis of disability discrimination. It is generally undesirable to categorise menopause as a disability, and the definition of “disability” for these purposes is not straightforward.
• There is no ability to argue combined discrimination, which ignores that menopause is an intersectional phenomenon (i.e., involving a combination of sex and age).

To address these challenges, the Report makes the following conclusions and recommendations:

• It is anomalous that the law protects women from pregnancy and maternity discrimination but not specifically discrimination related to menopause given that “all women will experience menopause, whilst not all women experience pregnancy.” The Report states that it is “unsatisfactory” that women have to present themselves as suffering from a disability to make an effective claim in relation to menopause and that, accordingly, Section 14 of the Equality Act should be immediately commenced. Section 14 of the Equality Act is existing drafting that is not currently in force and provides for discrimination cases based on a combination of two relevant protected characteristics (e.g., because the claimant is an older woman).
• A new protected characteristic of menopause should be created, which will require careful drafting and consultation. Per the Report, the government should launch a consultation on how to amend the Equality Act to introduce a new protected characteristic of menopause, with a duty to provide reasonable adjustments for menopausal employees. The Report states that the consultation should also consider the impact of the introduction of Section 14 of the Equality Act.

WHAT DOES THIS MEAN FOR EMPLOYERS?

The Committee has recommended that the introduction of Section 14 of the Equality Act should take place immediately, with consultation on the introduction of a new protected characteristic of menopause being commenced within six months of the Report.

While the government is not legally bound to adopt the recommendations of the Committee, with increasing scrutiny and public pressure to protect the rights of menopausal women, further action in this area is likely.

In the meantime, there are several steps employers should consider taking to help support employees experiencing menopause. For example:

• Talk openly about menopause, including via “lunch-and-learn sessions” or virtual or face-to-face menopause cafes.
• Appoint menopause champions made up of all genders to deliver training and awareness sessions, support, and information.
• Encourage awareness and education about menopause, such as providing a lending library of books and podcasts on menopause or holding training sessions for those that may not be aware of the impact of menopause.
• Ensure coordination between those dealing with human resources, equality, and diversity and health and wellbeing to demonstrate that menopause is seen as a health issue.
• Ensure access to appropriate professional support, such as an occupational health expert or in-house doctor.
• Implement a bespoke menopause policy and review other relevant policies, such as sickness absence policies and flexible working policies from a menopause perspective.
• Introduce or refine systems to record menopause-specific absences and agree and implement reasonable adjustments related to menopause.
• Consider introducing menopause leave or broader paid leave for “life events” which could be used by those experiencing menopause.
• Review equipment supplies and protocols—for example, redesign breathable uniforms and simplify procedures to order equipment such as fans.

Employers who support this important demographic are ultimately likely to maintain a more stable, productive, and experienced workforce, and mitigate the risk of potentially costly and reputationally damaging claims.

As we wait for the government’s response to the Committee’s recommendations, employers can in the meantime take significant steps towards better transparency, education, and support, which will in turn help to generate commercial success.