Menopause in the workplace - an update

The headline news relating to menopause in the workplace is that this month the government has rejected calls for the menopause to be added as a protected characteristic under the Equality Act 2010. This report (Menopause and the workplace: Government Response to the Committee’s First Report of Session 2022–2023) is the government’s delayed response to a House of Commons Committee report by the Women and Equalities Committee back in July 2022, in which recommendations to the government were made on reforming the laws relating to menopause and workplace discrimination.

The report acknowledges that “women over the age of 50 represent the fastest-growing segment of the workforce and it is crucial that we, and business, work to retain this talent”, but that as sex, age and disability are all covered by the Equality Act already, and that while it is “important that women who suffer substantial and longer-term menopausal effects should be adequately protected from discrimination in the workplace, … [the government is] not satisfied that the evidence given to the Committee during its inquiry fully supports new legislation”.

Critics of the government’s response point out that The Equality Act specifically protects against pregnancy discrimination which could be considered as more directly comparable to the unique situation of the menopause, and that sex, age and disability protections may not be adequate. There are no appropriate male comparators to use to bring a sex discrimination claim, that anyone experiencing early menopause would not be able to use age discrimination, and that the fluctuating (and developing) nature of menopausal symptoms may not meet disability thresholds.

The report also rejects the call for section 14 of the Equality Act 2010 to be enacted, which would have allowed for dual tribunal claims for discrimination relating to a combination of protected characteristics. In particular, there were concerns that enacting section 14 would place an additional burden on employers “particularly the potential for creating new areas of dispute over self-identity and concerns about hierarchies of rights”.

Employers should also note recommendation seven (“ the Government, in consultation with the Menopause Ambassador, produces model menopause policies to assist employers. The model policies should cover, as a minimum: how to request reasonable adjustments and other support; advice on flexible working; sick leave for menopause symptoms; and provisions for education, training and building a supportive culture”) was also rejected, meaning employers are free to create their own policies and procedures.

While the call for model menopause policies to be created was rejected, this does not mean that employers should be doing nothing. As part of their response, the government did agree to appoint a Menopause Employment Champion who will be a DWP Ministerial appointment, reporting to and consulting with DWP Ministers and indicates that “there is much that employers can and should do to help their employees experiencing the menopause”

Employers should also consider signing up to the Menopause Workplace Pledge (see our previous article here) which now has more than 2,000 employer signatures including NHS England, the Civil Service,  BBC, Tesco and Royal Mail. As part of their signing the pledge in the summer of 2022, NHS England published a new menopause policy for its 1.2million staff – of which women make up 75% - and it is recommended that employers across the board follow suit creating policies recognising the challenges faced by employees of menopausal age.

Posted on 01/30/2023 by Ortolan

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