What is the menopause?
According to the NHS the menopause is "when a woman stops having periods and is no longer able to get pregnant naturally". This sounds very simple and unproblematic, however there are more than 30 physical and mental conditions that may be caused by menopause transition including; hot flushes, night sweats, low mood, anxiety, difficulty concentrating, memory loss and sleep deprivation.
A lack of awareness and treatment are negatively affecting workforce productivity. It is a key recruitment and retention issue for the fastest growing cohort of employees in the UK. Employees in the menopausal stage of their life are often at the peak of their skills and experience and understanding how to support them is critical to keeping them. This issue has never been more important at a time of chronic labour and skills shortages.
We have seen positive signs of change and an erosion of taboos in recent months, with more talk of the menopause in society in general and with the issue being highlighted by several high-profile figures.
The legal impact of the menopause
Historically the number of claims brought before the employment tribunal which mention menopause have been low which you can speculate is due to the fact that women going through menopause are at their lowest ebb and due to a lack of awareness of both the cause of their condition and the legal options open to them. However this is changing and cases are on the rise. A recent analysis of court records by Menopause Experts Group found that there was a 44% increase in cases citing menopause in 2021, from the 2020 figures. It is also worth noting that the mention of the word "menopause" in tribunal documents increased by 75%. The Equality Act 2010 ("EqA 2010") does not specifically identify the menopause as a protected characteristic. The relevant protected characteristics are:
- age;
- disability;
- gender reassignment;
- marriage and civil partnership;
- pregnancy and maternity;
- race;
- religion or belief;
- sex; and
- sexual orientation.
As the law stands, in order to seek legal protection against dismissal or detriment, people experiencing mistreatment due to menopause need to rely on disability, sex or age discrimination under the EqA 2010 as routes to claim. There have been calls by some to make menopause a stand-alone protected characteristic to help clarify matters. However, the government has confirmed that at the present time there are no plans to revise the EqA 2010 to include an additional characteristic and that protection under existing protected characteristics is adequate.
Government Select Committee Report
On 25 November 2021 the independent report on Menopause and the Workplace, commissioned by the Government Select Committee was published and contained ten recommendations aimed at bringing about comprehensive change and support for those experiencing the menopause, in key areas of government policy, employer practice, and wider societal and financial change.
It suggested that the current legislation is ambiguous, for example the uncertainty around whether menopause amounts to a disability in law.
Government Response
On 18 July 2022 the government published its response to the November 2021 independent report on Menopause and the Workplace. It acknowledged a key objective is to ensure that women going through the menopause are treated fairly and supported at work. It confirmed that there is a need to ensure that employers understand the challenges of menopause and their current legal obligations in relation to that condition, including under the EqA 2010.
The government concluded that introducing menopause as a new protected characteristic in the EqA 2010 would require primary legislation, and that an enactment would introduce unwelcome regulatory complexity and place new costly burdens on business and the public sector. It therefore confirmed that at the present time there are no plans to revise the EqA 2010 and stated that protection under the existing protected characteristics is adequate. Instead the government has established a UK Menopause Taskforce with work and employment a priority theme. The government will work with employers to raise awareness and help them to support their workforce. This is certainly a step in the right direction, helping prioritise an incredibly important issue.
What does this mean for employers?
On the face of it, this means that nothing is going to change from a legislative point of view as the government believe that the current provisions in the EqA 2010 are sufficient to offer protection to those employees going through the menopause. However the heightened focus on the condition and the profile of potential claims, and expected action through the Taskforce is already driving an increase in claims.
Employers therefore need to ensure that when employees who fit the potential profile of menopause change in terms of their capability, demeanour or conduct, consideration is given to their health and well- being, enquiry instigated, support provided and reasonable adjustments put in place to enable the best working environment.
The existence of the Taskforce may also ultimately lead to legislative change in the longer term especially as we see higher incidences of challenges as a result of mistreatment of those going through perimenopause or menopause.
In the absence of change we have set down some critical recommendations to negate as far as possible disruptions to a business either through menopause sickness, talented staff leaving the business or reducing their hours and ultimately complex legal claims being pursued in the employment tribunals for age, disability and/or sex discrimination.
Recommendations:
Make menopause an organisational business critical issue: Menopause needs to be considered as an organisational business critical issue not as an individual worker issue. Recognising menopause as a critical business issue capable of affecting business success will create a culture of support and openness.
Implement a menopause policy: Having a menopause policy emphasises organisational understanding and helps raise awareness of the issue. It will educate staff about what the menopause is, who it affects and when, potential symptoms, and it will set down clearly the support available. Other policies which may be relevant include absence, flexible working and performance management policies containing specific references to workplace adjustments or absence triggers.
Training: Any policy is undoubtedly more effective when staff are properly trained and informed on its use. The menopause has historically been (and arguably, is presently) seen as a taboo subject. By discussing it openly and transparently in training sessions with the workforce, employers can help challenge misunderstandings and facilitate adjustments.
Access to information: Setting up a working group or menopause café invite to people going through the menopause to share experiences in terms of how the transition into and through menopause has affected them; creating a safe space is extremely powerful.
Workplace adjustments: Menopausal symptoms vary and can range from minor to very debilitating effects on an individual's ability to work. Symptoms also change over time so the picture is not static. While some individuals may endure symptoms which fall within the definition of a 'disability' under section 6 of the EqA 2010, and thus require an employer to consider whether reasonable adjustments are necessary, others may not but still need support. The Equality and Human Rights Commission Statutory Code of Practice provides a non-exhaustive list of reasonable adjustment examples.
Occupational health support: Employers should consider offering occupational health support for employees going through the menopause.
DWF offer a fixed fee policy drafting service, and we can also offer in-house training. Please contact your usual contact in the Employment Team or one of the contacts below.
Authors: Gaynor Beckett and Kirsty Rogers
