Menopause and the workplace: A personal and professional transition

Menopause and the workplace: is legal reform required?

As we enter World Menopause Awareness Month this October, we reflect on the protections currently afforded to menopausal and peri-menopausal employees within the workplace, and consider whether (and, if so, to what degree) those protections could or should be extended.

Menopause awareness in the workplace: Why is it important?

Menopause is nothing new. It affects (or will affect) half the world’s population at some point. It represents a natural transition in a woman’s life but, up until very recently (and like many other so-called “women’s issues”), was rarely discussed in public.

As our population ages, the challenges and misconceptions presented by the menopause will be increasingly difficult to ignore. Pre-pandemic, women over 50 were the fastest growing group in the workforce.[1] Yet the current trend has seen one in 10 women leave employment as a result of the menopause or menopausal symptoms.

With our economy still recovering from Covid and Brexit, we need people to work. We need the taxes that people in work generate, and we need to promote the types of working environments which keep people in work.

Employment law and the menopause: current position

Statutory position

As things stand, there are currently no special provisions in the Equality Act 2010 or Employment Rights Act 1996 which are designed specifically to protect menopausal workers. Instead, those who experience discrimination, victimisation and harassment, which they assert is (or may be) linked to their menopausal symptoms and/or to their experience of the menopause, will need to rely on existing provisions and, if necessary, bring claims based on the protected characteristics of age, sex, gender reassignment and (depending on the severity of the symptoms) disability.

Even where unfair dismissal alone, rather than discrimination, is being claimed, the statutory requirements for a fair dismissal do still offer some measure of protection. After all, an employer which has dismissed an employee for poor performance incapability, knowing full well that the employee’s poor performance may be due to menopausal symptoms but which, nevertheless, fails to investigate or consider these as part of its decision-making processes, may ultimately struggle to show that the dismissal was a reasonable response in the circumstances.

Case law

Over recent years, legal practitioners have instead depended on the body of case law flowing from the courts and tribunals systems for clarity on the protections upon which menopausal employees may be able to rely within the workplace.

These cases have now confirmed, in particular that:

where menopause symptoms are intrusive and disruptive to daily life over a sustained period of time, menopause will constitute a “disability” under the Equality Act 2010 (e.g. Rooney v Leicester City Council EA-000070-DA EA-2021-000256-DA and thus also engage the duty to consider reasonable adjustments;
failing to treat menopausal symptoms with the same degree of seriousness as other non-female related conditions, would be direct discrimination the grounds of sex ( Merchant v BT plc ET/140135/11) and/or sex-related harassment; and
calling an employee a “dinosaur” and linking their poor performance with the menopause is harassment related to age (A v Bonmarche Ltd (In Administration) ETS/4107766/19).

Importantly, however, an employer will not be liable unless they have knowledge that the employee is menopausal or experiencing menopausal symptoms. If an employee is to benefit from any protection as a result of their treatment, therefore, the onus is on them to inform their employer of their condition.

There are a few difficulties with this. First of all, many employees may not necessarily recognise their symptoms as being as a result of the menopause or peri-menopause, and so might not think to bring this to their employer’s attention.

Secondly, some employees may feel very reticent about disclosing what is, in fact, a very personal and (for some, certainly) a distressing transition in their lives. It can have a huge impact on confidence and sense of identity. Alternatively, there may be some employees who are experiencing menopausal symptoms as a result of gender reassignment treatment and may not wish to disclose to their employer that they are undergoing such treatment. In the absence of any explicit menopause protection legislation, therefore, creating a workplace environment that allows employees to feel comfortable raising these issues with their managers, will be key to ensuring those employees are afforded the protection they deserve.

The need for reform

Arguably, therefore, there is a need to review and reform the statutory framework in this area of the law, and many commentators, such as the Women and Equalities Committee, agree.

Whilst they acknowledge that the other protected characteristics in the Equality Act 2010 do provide some protection, the drawback is that this can result in complex and time-consuming litigation. It also depends on the employee properly identifying the relevant protected characteristic(s) that their particular circumstances engage, or run the risk of being denied justice on the basis of a technicality.

Perhaps more importantly, however, are the difficulties that can arise for employees in proving their case using protected characteristics that may not necessarily fit neatly into their circumstances. Both sex and age discrimination, for instance, require the claimant to point to a relevant comparator of the opposite sex or of a different age demographic. However, whilst menopause affects older women in the main, it does not affect them exclusively. Both young and older workers can be equally impacted, making it potentially harder to identify a comparator.

Likewise, the binary definition of “sex” for the purposes of a sex discrimination claim (which refers to the biological genders of “male” and “female”) means that it is practically impossible (depending on whether they are a trans-man or a trans-woman) for those from the transgender community to bring associated claims based on sex discrimination.

Employment law and the menopause: future reform?

Whilst the push for reform is clearly gaining traction, the steps that the government is proposing to take are tentative at best.

Whilst the Woman and Equalities Commission Consultation report on menopause and the workplace made a number of legislative and non-legislative recommendations, the government:

declined to activate s.14 of the Equality Act to enable women to make discrimination claims based on dual protected characteristics (such as age and sex; or sex and disability).
declined to consult on the introduction of a new protected characteristic of menopause or the requirement to make associated reasonable adjustments;
did not agree that it was necessary to produce a model menopause policy to assist employers;
did not agree to pilot a specific menopause policy.

However, it has made some concessions. In particular, it has agreed to:

develop strengthened guidance to give employers clear and simple principles that they would be expected to apply to support employees experiencing the menopause;
make the right to request flexible working a day 1 right; and
appoint a Menopause Employment Champion to raise awareness of the issues facing employees in the workplace, as well as to promote the overall benefits to the economy when women are supported to stay in work.

How to make your workplace “menopause inclusive”

Despite the government’s apparent reluctance to legislate for, or otherwise mandate, a clear position on menopause and employment, there is a wealth of support and guidance out there for those employers keen to ensure their workplaces are “menopause inclusive”.

Key recommendations are for employers to:

provide training and guidance for managers;
develop a menopause policy;
carry out regular health and safety checks and risk assessments to ensure working environments remain suitable;
encourage open dialogue with staff via regular, informal one to ones;
consider reasonable adjustments, including to performance management and sickness absence processes; and
keep in mind that menopause affects transgender and non-binary employees, as well as younger members of the workforce.