New report calls for menopause to be added to the list of 'protected characteristics' under the Equality Act

Women of menopausal age are the fastest growing group in the workplace, with 4.5 million women aged 50-65 currently in employment.  The Women and Equalities Committee has published its report into how menopausal women are treated at work and what steps need to be taken to protect them.

The report found that the current law does not adequately protect menopausal women who have been forced to rely upon disability, age or sex discrimination legislation to bring claims against their employers (read our previous blog post reporting on the significant increase in the number of women bringing claims linked to menopause here).

It called for the Government to act and make a number of legal and workplace reforms, including introducing menopause as a new 'protected characteristic'.

Scope and findings

The inquiry was launched to understand the extent of discrimination faced by menopausal women in the workplace and how government policy and workplace practices can better support those experiencing menopause. It heard from legal and medical experts, academics, members of the public, including a survey of over 2,000 women. 

The report cites discrimination, stigma and a lack of support in the workplace as factors in menopausal women leaving their employment, creating a knock-on effect for our economy as a whole, the gender pay gap, pension gap and women in senior leadership positions.

The most common symptoms of menopause at work were found to be a loss of ability to concentrate (71% of those surveyed), increased stress (70%) and a loss of confidence (67%). Despite this, only 12% requested any workplace adjustments and one in four cited worries about their employers' reaction as a reason for not doing so. 

The report highlights that, whilst the law (rightly) protects women from pregnancy and maternity discrimination, it does not specifically mention menopause which is "anomalous" given that all women will experience menopause, whilst not all women experience pregnancy. 

It found that menopausal women must currently "shoe-horn" their discrimination claims into disability, sex or age claims and there were difficulties within the law in doing so. For example not all claimants may meet the legal criteria for a "disability" under the Equality Act 2010. Proving disability can be a long, complex and costly process for claimants, involving publishing (often very personal) medical records. 

We've previously reported on a number of cases where menopausal symptoms did amount to a disability.

The report also cited complexities with claiming direct age or sex discrimination in finding an appropriate comparator. Further, a younger woman experiencing early menopause might not be able to successfully argue age discrimination.

Recommendations

The report made a number of key recommendations to the Government for legal and workplace reform, including: -

• Launching a consultation on how to amend the Equality Act 2010 to include a new protected characteristic of menopause, including a duty to provide reasonable adjustments for menopausal employees (although acknowledging that this would require "careful drafting and consultation");
• Enacting section 14 Equality Act 2010, which permits claimants to bring combined or "intersectional" discrimination claims i.e. claiming they have been discriminated against because of two or more protected characteristics. In the context of menopause, this would allow women to claim they had been discriminated against because they are an older woman, for example. Despite the provision already being contained in the Equality Act, it has never been brought into force;
• Appointing a Menopause Ambassador, with key tasks for them including the introduction of model workplace policies covering how to request reasonable adjustments and advice on flexible working and sick leave;
• Piloting a "menopause leave" policy with a large public sector employer within 12 months; and
• Bringing forward legislation to make flexible working a day-one right for all employees (as it had previously indicated it would do in the Employment Bill, which is yet to materialise).

Next steps: what can employers do? 

The Government has two months to formally respond to the cross-party report. However, it has already strongly indicated that it has no plans to revise the Equality Act 2010 to either introduce a new protected characteristic for menopause, or to enact section 14, stating that the current law goes far enough to protect menopausal women, in its view. This is disappointing news for many.

Although legislative reform is unlikely in the near future therefore, there is still plenty that employers can do to attract, support and retain women of menopausal age and reduce the risk of discrimination complaints (which can still be brought under existing legislation as age, sex and disability claims as we have seen before). 

Practically, the report lists a number of  "adjustments" which employers could make (cited by the women surveyed) and includes fans at desks, breathable uniforms, flexibility and flexible working, educating staff (providing an open space for discussion and reducing stigma) and support networks.

In addition to this, employers can: -

1. Put a menopause policy in place. We've developed a precedent menopause policy to help organisations talk openly about this issue and to develop good practice around those conversations. Our IMhr plus clients can access it via the portal and we're offering it free of charge to any organisation that would like it. Please contact Gordon Rodham if you'd like a copy.

2. Consider having a menopause or wellbeing manager that staff can speak to to raise concerns and support them (rather than their manager).

3. Provide information about where staff can obtain support and good advice.

4. Carefully manage sickness absence or a dip in job performance linked to menopause and consider what reasonable adjustments you can make to help the employee.

5. Educate staff about the menopause and train managers so that they are comfortable discussing the menopause and its impact on individuals. Our partner, Jenny Arrowsmith regularly helps organisations support menopausal women. Please get in touch if you'd like details of the training she can offer or need specific advice on this issue.

This includes our new fixed-price online training module on menopause for line managers. More details can also be found via our website.

You can read our other tips here.

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The Government has two months to formally respond to the cross-party report. However, it has already strongly indicated that it has no plans to revise the Equality Act 2010 to either introduce a new protected characteristic for menopause, or to enact section 14, stating that the current law goes far enough to protect menopausal women, in its view. This is disappointing news for many.”