Menopause | Legislative reforms that may be coming down the track
Written by Lesley Rennie on 10 August 2022
As more organisations sign up to the Menopause Pledge, and more discussions about menopause are had in the media, the conversation around menopause at work is gaining momentum and shows no signs of slowing down.
While more proactive organisations may have already implemented policies and training on the topic, many are still not fully clued up on their obligations and ways to support staff, or comfortable dealing with menopause-related matters.
This lack of support and openness in many workplaces can make carrying out day-to-day duties very challenging for employees experiencing menopause symptoms (learn more about common symptoms and the impact on work here) – in fact, around one million women have left the workforce early as a result. This represents a huge loss of skills and talent.
Recognising that more needs to be done to ensure those going through menopause aren’t left to struggle with their symptoms, discriminated against or left feeling that they have no choice but to leave the workforce, the House of Common’s Women and Equalities Committee (WEC) has recently published a report in which it makes several recommendations for reform in the workplace. Its recommendations are based on its survey of over 2,000 women conducted in September 2021.
The current legal framework, it says, doesn’t adequately protect menopausal employees, and more needs to be done to retain menopausal employees within the workplace. So what exactly is it proposing and what might this mean for employers?
Increased support and enhanced legal protection for menopausal women
In summary, the WEC is recommending the enactment of the dual discrimination provisions in the Equality Act, the establishment of menopause as a protected characteristic, and the right to request flexible working from day one.
The full report is available here, but the detail on the key points for employers is as follows:
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1. Dual discrimination claims
Section 14 of the Equality Act 2010 deals with ‘dual discrimination’. This is where discrimination occurs due to a combination of protected characteristics.
For example, an employee may believe they have been treated less favourably because they are both black and a woman. In this scenario, if Section 14 were to come into force, they may be able to bring a combined claim on the basis of race and sex.
This section has yet to be enacted; however, the WEC is calling upon the government to do so immediately in recognition that menopause almost invariably involves a combination of both age and sex.
At present, claims relating to menopause are brought on the grounds of age, sex or disability discrimination. Whilst an employee can bring a claim on more than one ground, with each protected characteristic being pled in the alternative (for example, “I was discriminated against either because of my age or my sex”), these protected characteristics can’t currently be combined (“I was discriminated against because of my age and my sex”).
Allowing claims of dual discrimination to be brought would make it easier for an employee to succeed in a claim of discrimination where the reason for the treatment is a combination of protected characteristics, and where it would otherwise be difficult for a Tribunal to separate the basis for the treatment and reach a finding. However, it’s highly unlikely that this recommendation will be acted upon, at least not whilst the present government remains in power.
It’s important to note that implementing Section 14 would allow dual discrimination claims based on all of the protected characteristics, not just those related to menopause. This would invariably increase the volume of claims moving through an already stretched Employment Tribunal system and increase the level of regulation required of businesses at a time when the government is committed to actively reducing this.
Given this, and the fact that it hasn’t been implemented in the 12 years since the Equality Act came into force, it’s likely that Section 14 won’t be brought into action any time soon.
2. Making menopause a protected characteristic
The Equality Act identifies nine protected characteristics, including disability, race, age and sex. Employees have a right not to be treated less favourably or subjected to an unfair disadvantage (in other words, directly or indirectly discriminated against) by reason of these characteristics.
The menopause is not currently a specific protected characteristic. At the moment, any discrimination claim related to menopause must be brought on the basis of one of the nine protected characteristics, namely age, sex or disability.
This means that at present, menopause claims are essentially being “slotted in” to an existing protected characteristic, which can make it much harder for a claim to be brought.
The fact that menopause isn’t currently recognised as a separate protected characteristic is problematic in a number of ways. Firstly, relying upon the protected characteristic of age doesn’t recognise that younger employees can suffer from early menopause and menopausal symptoms can be experienced by employees within a broad age span.
Additionally, employees can currently only bring a claim for disability discrimination (for instance, where they have been disciplined as a result of menopause-related absences or where the employer has failed to make reasonable adjustments) if their symptoms have a “substantial and long-term adverse effect on their ability to carry out normal day-to-day activities” – the definition of disability given under the Equality Act – and in most cases the employer must have actually known or reasonably ought to have known that the employee was disabled at the relevant time in order to be liable. However, menopause can last for years with intermittent symptoms, so not all employees will satisfy this definition, and those who do may be reluctant to disclose their symptoms or downplay the severity of them out of concern for the reaction they will receive.
Further, some employees will not wish to equate their symptoms with the ordinary meaning of disability, given that menopause is a normal part of life, and may be reluctant to share sensitive medical information with a Tribunal.
Making menopause a specific recognised protected characteristic would remove these barriers and make it far easier for an employee to seek redress for any less favourable treatment.
It’s proposed that this new protected characteristic would impose upon employers a blanket legal duty to make reasonable adjustments akin to the current obligations in respect of disabled employees, regardless of whether that threshold of disability was met.
Reasonable adjustments could include:
- Having fans at the desks or another means of controlling temperature;
- Better ventilation;
- Uniforms appropriate for menopause, for example made of breathable material;
- Access to drinking water;
- Adjusted working hours;
- Working from home when symptoms are severe; and
- Easy access to toilets and to washing facilities.
If menopause were to be made a protected characteristic, this would presumably be accompanied by a specific definition and fuller guidance aimed at employers, making it more straightforward for them to identify when a duty to make adjustments applies and to assess risks when dealing with performance management and attendance issues arising from menopausal symptoms.
However, as there is already protection under the existing discrimination and health and safety legislation, employers should already be acting in a way which ensures that menopausal employees are not treated less favourably, placed at a disadvantage or harassed due to their symptoms, and should be putting in place appropriate adjustments, such as those outlined above, to avoid any aggravation of symptoms identified through risk assessments.
Without a doubt, the introduction of menopause as a tenth protected characteristic not only raise awareness of employees’ rights in this regard but also afford Claimants a far easier route to bring claims against their employers, and in doing so would encourage more claims to be brought. However, on its own, it’s unlikely to achieve the WEC’s aims.
For decades, employees have been protected against discrimination on the existing nine bases, yet we continue to see successful cases being brought. What may bring about a more sustained improvement in the experiences of menopausal employees, a decrease in sickness absence attributable to menopausal symptoms and reduction in the number of women exiting their careers prematurely is a change in attitudes towards menopause and a focus on support and open conversations in the workplace underpinned by more practical guidance for employers.
Women and Equalities Committee
3. Right to request flexible working from day one
When asked what their employer could do to support them through menopause, those that took part in the WEC’s survey cited greater flexibility as a common request. Respondents called for flexibility in their working hours, as well as their place of work, and working from home was frequently mentioned.
Those going through the menopause may also need to take more breaks during the day or leave work suddenly if their symptoms become severe.
As such, the WEC is recommending that employees be given the right to request flexible working from day one, rather than having to wait six months as is the case currently. This isn’t a new proposal; it formed part of the Employment Bill announced in the Queen’s Speech back in 2019 and the government has already consulted on making flexible working the default. However, it is yet to set a date for next steps.
The WEC is once again asking the government to introduce this legislation as a matter of urgency, saying it is “disappointed” that feedback from the consultation is still being analysed seven months after it closed. Whether or not this is high up on the agenda for the new Prime Minister remains to be seen, but given the fluidity of working practices following the pandemic, of the three proposals, this may be the one which gains the most traction.
Within its report, the WEC also proposes a number of other reforms, including:
- Menopause leave, to be piloted in the public sector for 12 months, with the aim of stopping workers being forced out of work by rigid sickness policies.
- Having the government appoint a “Menopause Ambassador” to encourage and disseminate good practice and guidance to employers. The Menopause Ambassador will work closely with Dame Lesley Regan, who was recently appointed as the first ever Women’s Health Ambassador for England, to raise the profile for women’s health and increase awareness of taboo topics such as menopause.
- Model policies (produced by the Menopause Ambassador) to cover specific areas including adjustments, sick leave, flexible working, training and culture – though it stops short as suggesting compulsory workplace policies, feeling that it would engender a tick box exercise.
How likely is it that these changes will come to fruition?
Whilst a new protected characteristic of menopause would certainly meet the government’s aspirations of ensuring that menopause remains a top priority across society and government, it’s clear that there is no political will to amend the Equality Act to introduce a new protected characteristic at present, or to enact Section 14 to permit claims of dual discrimination.
In fact, the government said it “does not believe further changes to the Equality Act are needed” as recent cases “show that employees have scope within the Act to challenge discriminatory treatment by employers – claiming under one or more of the three relevant characteristics”, i.e. sex, age and disability.
This is unlikely to change with the appointment of the new Prime Minister.
Whilst the mechanics of bringing a claim doesn’t look set to change in the foreseeable future, what does appear to be changing is societal attitudes towards menopause as a natural stage in any woman’s life and an increasing expectation of support within the workplace.
Keen to become a menopause-friendly employer?
With new case law confirming that menopause is capable of protection under the Equality Act, and new legislation potentially on the horizon, it’s important that organisations understand their legal responsibilities surrounding menopause.
If you’re not fully clued up on your obligations or confident managing these matters, WorkNest’s seasoned HR and Employment Law specialists are here to help you support staff and protect your business. We can:
- Provide training for managers on managing menopause-related issues in the workplace, as well as sessions for staff designed to increase awareness of the menopause;
- Provide you with an Employee Handbook containing all the essential policies your business needs to manage staff fairly and compliantly, including a Menopause Policy, Sickness Absence Policy and Equality and Diversity Policy;
- Advise on specific situations, including reasonable adjustments, to help you fulfil your duties as an employer and minimise the risk of disputes and claims.
For advice, support and training, call 0345 226 8393 or request your free consultation using the button below.