Employers must do more on menopause despite no change to UK law

Ministers rejected a proposal to amend the 2010 Equality Act to include menopause as a protected characteristic, after concluding that it risked “unintended consequences which may inadvertently create new forms of discrimination, for example, discrimination risks towards men suffering from long-term medical conditions”.The proposed change, had it gone ahead, would have introduced a duty on employers to provide “reasonable adjustments” for menopausal employees. 

The proposed amendment was one of 12 recommendations made by the Women and Equalities Committee to protect the rights of women experiencing menopause at work in a report titled “Menopause and the Workplace”. The government has now published its response to the report (253KB / 21-page PDF), turning down more than half of its recommendations.

Another rejected recommendation was to pilot a ‘menopause leave’ policy, as ministers expressed concern of it being “counterproductive”.

However, Trish Embley of Pinsent Masons said: “Irrespective of the government’s decision that menopause will not be a protected characteristic under the Equality Act 2010, if an employee or worker is put at a disadvantage and treated less favourably because of their menopause symptoms, this could be discrimination if related to an existing protected characteristic, such as age, disability or sex.”

Some women have already successfully sued their employers in menopause-related cases with reference to existing protected characteristics, such as age, sex and disability. For example, in a ruling by the Employment Tribunal in January 2022, a female employee was found to have suffered sexual harassment under the Equality Act related to the protected characteristic of sex when her boss directly asked her whether she was menopausal.

“A good starting point for employers is to implement a workplace menopause policy that educates and informs managers about the potential symptoms of the menopause and raises wider awareness and understanding among the whole workforce,” said Embley.

However, having the policy in place is only the first step. Findings of the University of Edinburgh’s research project Supporting Healthy Ageing at Work indicate that women experiencing menopause-related issues prefer solutions tailored to their individual circumstances over and above blanket workplace policies. The attitudes and roles of line managers were seen as crucial by researchers, both in terms of whether or not women felt they could disclose any menopause-related difficulties, and in the empathy they would be shown.

Similarly Unison, one of the UK’s largest trade unions, in its menopause guidance highlights the need for working time arrangements to be flexible enough to ensure that they meet the needs of workers experiencing the menopause and who may require leave suddenly at short notice. Affected workers may also need more or lengthier ‘comfort breaks’ during the day.

“Successful businesses do not tend to focus, solely, on strict legal compliance. They are led by their purpose and values and an understanding that supporting women though the menopause, whether that be by making adjustments to their role or environment or by allowing flexible working hours, will lead to better productivity and performance. Creating an inclusive work environment is not just a matter of compassion – it is the smart thing to do from a commercial point of view,” said Embley.

A survey of 2,000 employees and 500 business owners by Benenden Health in 2021 found 23% of women who have been unwell as a result of the menopause have left jobs. The loss of key resource is concerning, according to Embley, as employers become increasingly aware of the need to retain older workers to address their skills gap and in light of a tightened labour market that has increased competition on recruitment.

“There is a great deal of competition in the market in terms of recruiting and retaining talent and those employers who adopt these more progressive strategies tend to be the employer of choice for workers of any age,” she added.

While the government rejected several of the Women and Equalities Committee’s recommendations, others have been accepted. These include appointing a ‘menopause ambassador’ to work with stakeholders from businesses, unions, and advisory groups to promote awareness, good practice and guidance to employers, as well as to monitor progress made by businesses.