It certainly wasn’t the main talking point in Westminster in the middle of the country’s own meteorological hot flush earlier this month but on 19 July the government published its Response to Menopause and the workplace: how to enable fulfilling working lives, an independent report commissioned by the then Minister for Employment and published in November 2021.
The report had indicated that government backing was key to ensuring that employers provide support to those experiencing menopause, and contained 10 specific recommendations. One of these was for an amendment to the Equality Act 2010 to provide greater protection in respect of menopause. Currently, claims in respect of less favourable treatment on menopause grounds may be covered under one or more of three protected characteristics under that Act: age, sex and/or disability. The Health and Safety at Work Act 1974 also provides a degree of protection in some cases, but overall the November 2021 report indicated that current laws are felt to be insufficient, and that legislation should go further towards protecting menopausal employees against adverse treatment on those grounds.
However, this month’s Response makes it clear that the government deems any changes to the Equality Act unnecessary in its view since employees already have scope to challenge discrimination under one or more of the existing grounds above. But is that really right?
First, is the menopause necessarily a disability for statutory purposes? There is ET “authority” in Mahon v Rothwell (2019) and Evans LLP and Donnachie v Telent Technology Services Ltd (2020) that it can be, but only where the individual’s symptoms satisfy the fairly stringent legal test as to duration and gravity of adverse impact, which is likely to be a significant minority of cases. Second, bringing the claim as gender discrimination will also be difficult – the only legal protection for gender specific health issues is for pregnancy itself. Opening the door to discrimination claims for gender-specific health issues or complaints (we all have them) is a very short distance logically but a whopping step legally from the application of the discrimination rules to complaints which merely affect one gender predominantly but not exclusively. It is likely that almost all medical conditions have some level of gender disparity (and race/ethnicity besides, but that is one for another day) so that could have been seen by government as an unacceptably large floodgate to open. And as to age, the menopause strikes at widely differing ages with widely differing impacts and so establishing any form of disparate impact by meaningful age group is always going to be difficult.
Advice for employers
The menopause has become a hot topic of late, with high-profile individuals including Davina McCall, Penny Lancaster, Michelle Obama and Gwyneth Paltrow seeking to highlight the debilitating symptoms they themselves experienced. The extent of the issue has also been highlighted in a 2019 survey by BUPA and the CIPD showing that three in five menopausal women believe that they have been negatively impacted at work by their symptoms, from incapacitating flushes to persistent brain fog, and that almost 900,000 UK women left their jobs as a result (though the time over which that happened is not specified and it is not suggested that this was all or mostly the product of less favourable treatment by the employer).
The increased awareness about the impact of menopause upon individuals and the knock-on effect that this can have on their working life, together with the dramatic rise in menopause-related Employment Tribunal claims (up 44% in 2021 compared to 2020), has prompted many companies to take pro-active steps to improve the knowledge and understanding of staff (particularly managers), publish policies regarding menopause and point menopausal employees towards available support.
The November 2021 report recommended a number of measures for employers to put in place and the government’s Response supports these (unlike changes to law, it costs them nothing to do so, after all), referencing the Menopause Policy recently launched by the Civil Service as an example to follow:
- look to have open conversations with employees experiencing menopause;
- ensure line managers are aware of the potential impact of the menopause and the resources available to those affected;
- raise awareness amongst staff – while one might make jokes about one’s own hot flush, for example, that Is not Open Season for everyone else to do so too;
- make adjustments where necessary;
- appreciate the value of specialist support;
- review sick leave policies and procedures;
- consider any material adverse impact of the menopause when conducting performance management;
- offer flexible working where it may assist; and
- offer returner programmes which highlight post-menopausal opportunities.
Further, larger employers are encouraged to offer Employee Assistance Programmes expressly covering issues arising out of the menopause.