Menopause and the workplace – government responds to Women and Equalities Committee’s report

Posted: 03/02/2023

The government has now published its response to the July 2022 report from the Women and Equalities Committee, Menopause and the workplace. While some of the recommendations in the report have been accepted, in full or in part, the headline workplace recommendations, including making the menopause a protected characteristic under the Equality Act 2010, and piloting a policy for ‘menopause leave’, have been rejected.

The response does, however, accept in principle the recommendation that a menopause ambassador be appointed (known as a ‘Menopause Employment Champion’), whose role will be to ‘give a voice to menopausal women, promoting their economic contribution, and working with employers to keep people experiencing menopause symptoms in work and progressing’.

Another of the report’s recommendations, that the right to request flexible working becomes a day one right, has already been accepted and legislation is currently making its way through Parliament.

Menopause leave and policy

The government rejected the recommendation that a menopause leave policy should be piloted with a large public sector employer. Its view is that this may be counterproductive to the aim of encouraging employers to implement policies and other forms of support enabling menopausal employees to remain in the workplace, such as flexible working.

Similarly, the government did not agree with the production of model menopause policies, noting that such policies do not always benefit from a ‘one size fits all approach’, and that organisations such as ACAS and the CIPD have already produced guidance for employers and employees.

Protected characteristics and combined discrimination

The government declined to amend the Equality Act 2010 to add menopause to the list of protected characteristics. This is on the basis that sufficient protection is already provided with the existing protected characteristics of age, sex and disability (a view shared by Unison and the CIPD) and, perhaps more implausibly, that making menopause a protected characteristic ‘may inadvertently create new forms of discrimination, for example, discrimination towards men suffering from long-term medical conditions, or eroding existing protections’.

It also ruled out enacting section 14 of the act recognising ‘combined discrimination’. This provision, which has never been brought into force, outlaws less favourable treatment because of a combination of two relevant protected characteristics eg a menopausal woman could bring a claim for discrimination on the combined grounds of age and sex.

Although both of these decisions have been greeted with dismay by some campaigners, from a legal standpoint at least, there is some logic to them. While those who wish to make a claim for discrimination because of symptoms relating to the menopause can struggle to know how to base their claim (should it be a claim for age, sex, disability, or all three?), a number of such claims have succeeded before the tribunal.

Menopausal symptoms which have a substantial and long-term adverse effect on a woman’s ability to carry out day-to-day activities will amount to a disability under the act. Where symptoms are not so severe, or where a woman is facing prejudice or stereotypical assumptions about the fact that she is, or will soon become, menopausal, then she may have claims for both age and sex discrimination. This is where the argument for dual discrimination comes into play – she is not being discriminated against because of her age, or because of her sex, but because she is an older woman.

Take the example of a woman aged 50 who is not offered a job because she is around menopausal age. If she chooses a younger woman as a comparator when seeking to establish less favourable treatment, then she has grounds for a claim. Similarly, she will have an arguable case for sex discrimination if she identifies as her comparator a man of the same age. Each claim could potentially stand alone, and as long as care is taken to identify the correct comparators for each claim, there is arguably no need for a separate combined discrimination claim.

Menopause and the workplace – what should employers do?

Although the government has not accepted many of the report’s recommendations, the response restates its commitment, as set out in the 2022 Women’s Health Strategy, to support menopausal women to remain in the workplace, and to ensure employers are well-equipped to support their workforce during the menopause. Indeed, menopause is an issue that employers ignore at their peril – according to the government women over the age of 50 represent the fastest growing segment of the workforce, and the Women and Equalities Committee has found that 4.5 million women aged 50-64 are currently in employment. It is often, however, a tricky issue to navigate, whether due to ignorance, embarrassment or a fear of causing offence.

Indeed, while many women who are experiencing menopausal symptoms in the workplace may welcome increased legal protection, others may fear that additional protections for menopausal women may make it even more difficult for women ‘of a certain age’ to find employment. Having finally rid themselves of the assumptions and prejudices that have accompanied their childbearing years, many women experience few, if any, menopausal symptoms, or are able to manage their symptoms through medication, and do not want to be held up as requiring additional ‘protection’.

There are no easy answers. What is clear, however, is that menopause is increasingly becoming an issue in the workplace. Education and training, encouraging dialogue about the menopause, being open to the possibility of reasonable adjustments including flexible working, and putting in place a menopause policy will all assist employers and employees in navigating this difficult workplace issue.

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