Menopause - a workplace issue
Whilst a revolution has taken place in recent years in breaking down the taboo of menopause in the workplace, there is still progress to be made in ensuring inclusive working environments for menopausal employees. And with women of menopausal age the fastest growing demographic in the UK workforce, there are legal, social and economic reasons for employers to become more inclusive and menopause-friendly.
The Women and Equalities Committee (“WEC”) has recently published the outcome of its inquiry which explored how (and why) menopausal employees feel driven out of the workplace. Despite the progress that has been made, the menopause still carries significant stigma with workplace discrimination faced by those experiencing the menopause reportedly widespread. In finding that the law does not currently “serve or protect” menopausal women, the report called on the Government to lead the way in developing good practice.
The WEC published the outcome of their inquiry into menopause and the workplace on 28 July 2022.
BUPA found that almost 900,000 women in the UK had left their jobs because of menopausal symptoms. The inquiry therefore looked at what drove women to leave their jobs and the impact on the economy of haemorrhaging talent. With the majority of working women experiencing the menopause being negatively affected at work, the inquiry also looked at how the understanding, diagnosis and treatment of the menopause translated into women’s experiences at work and the adequacy of protection for those who suffer menopause-related discrimination under the current law.
Conclusions and recommendations
The WEC highlighted that menopause is a workplace issue. They reported that the risks for employers of failing to support menopausal employees are wide-ranging, including vulnerability to expensive discrimination claims, damage to reputation and profitability, and loss of female talent and role models at the peak of their knowledge and skills.
Whilst the WEC were not persuaded that introducing a legal requirement for employers to have a menopause policy would be meaningful, they noted that there are a range of other ways employers can (and should) help. This might include making practical adjustments to the individual’s workspace (provision of desk fans, better ventilation, and easy access to toilet facilities), allowing additional flexibility and increasing general understanding of the menopause.
The WEC called on the Government to:
- Appoint a Menopause Ambassador to encourage and disseminate awareness, good practice and guidance to employers;
- Produce model menopause policies covering how to request reasonable adjustments, advice on flexible working, sick leave for menopause symptoms and provisions for education, training and building a supporting culture; and
- Develop and pilot a ‘menopause leave’ policy with a large public sector employer and provide an evaluation within 12 months.
Noting their disappointment that the long-awaited Employment Bill had still not materialised, they also recommended the Government make the right to request flexible working a day-one right for all employees. The Government’s response to last year’s consultation on this is still outstanding.
The WEC also identified the various limitations of bringing menopause-related discrimination claims under the current legislative framework. Whilst the number of menopause-related tribunal cases has climbed steadily over the years, without special provision for menopause (as was required for pregnancy), claimants are required to ‘shoehorn’ their claims into a claim based on the protected characteristics of age, sex and/or disability. This can result in ‘undesirable’ and ‘demeaning’ consequences. Take, for example, an individual who is trying to claim direct sex discrimination because of menopause-related treatment. A comparator (i.e. someone of the opposite sex who does not have the same protected characteristic) is required, meaning that a woman experiencing menopause is required to compare herself to an ill man.
They concluded that the current law under the Equality Act 2010 ‘does not serve or protect menopausal women’, a situation which they deemed ‘anomalous’ given all women will experience menopause. Two proposals for legislative reform were recommended:
1. Immediate introduction of Section 14 to allow discrimination cases based on a combination of two protected characteristics given that menopause is an ‘intersectional phenomenon’; and
2. The creation of a new protected characteristic of menopause (subject to the launch of a consultation before the end of 2022 on how this should be defined), including a duty to provide reasonable adjustments for menopausal employees.
Is change to the legal framework on the horizon?
The government will now respond to their proposals. In Autumn 2021, it indicated that the menopause would be a women’s health strategy priority and recognised that work needed to be done in relation to workplace support. However, to date it has indicated that it has no plans to revise the Equality Act either by making menopause a protected characteristic or by implementing the combined discrimination provisions on the basis that they believe the existing protected characteristics already provide adequate routes for protection.
We are therefore unlikely to see legislative change in this area in the short-term. Outside of that, the Government’s commitment to improving workplace support for the menopause has already led to the appointment of a Women’s Health Ambassador who will sit on a newly established UK Menopause Taskforce. It will remain to be seen whether the Government will adopt the other WEC recommendations as its strategy gains momentum.
Nevertheless, the views of WEC and the Government reaction are maintaining the conversation around this important topic and serving to educate and raise awareness of the issues. Increasingly employers are recognising the importance of supporting the population of women, trans and non-binary people undergoing the menopause with policies, employee networks and other forms of support. If societal change continues at the same pace, new legal protections may simply be the icing on the cake.
For further information on the menopause in the workplace, see our note here.