Menopause: the mark of discrimination?

At the beginning of August, the House of Commons Women & Equalities Committee (“WEC”) published its report Menopause and the workplace, which considered the impact of the menopause on employees and businesses, particularly focusing on the wider health issues connected with the menopause, as well as the potential legal reform that is required. The report is the outcome of the committee’s inquiry, where it spoke with a number of participants from a health, legal and business background to discover what the Government and businesses should be doing to better support those going through the menopause.

As reported in Gillian Cumming’s article “Pause for thought” (Journal, March 2022, 20), menopausal women are the fastest growing group of workers in the UK, and the menopause can have a significant and debilitating impact on health and wellbeing. However, as noted in the committee report, there is still a lack of awareness or understanding of menopause, “even amongst women themselves”. According to the Office for National Statistics, there are currently around 4.5 million women aged 50-64 in employment, but many of these women are feeling forced to leave their work because of negative menopausal symptoms.

The WEC received evidence suggesting that the impact of the menopause on women in work fell into three main categories: problematic symptoms; lack of support and discrimination; and loss of income/reduced work. As such, the WEC recommended solutions to these problems as: 

• the enactment of the dual discrimination provisions of the Equality Act 2010; 
• recognising menopause as a protected characteristic; and 
• changing the right to request flexible working to a day one right for employees. 

By making these proposed changes there would be increased support and enhanced legal protection for menopausal women.

Dual discrimination    

Section 14 of the Equality Act 2010 relates to dual discrimination, that is, where discrimination occurs as a result of two protected characteristics, for example disability and sex. This section of the legislation has never been implemented, and the WEC has called on the Government to do so in its report, allowing women to bring claims on the grounds of age and sex, and not simply that their discriminatory treatment related to age or sex, for example.

It is unlikely that the current Government will bring this section into force, but it is thought that the reference to it within the report may bring the fact that it has not been implemented to the forefront.

Tenth protected characteristic?

A further proposal in the report would be to make menopause a specific protected characteristic, in addition to the existing nine protected characteristics. At the moment, any discrimination claim relating to menopause would have to be brought on the basis of age, sex or disability. This makes it harder to bring a claim, and doesn’t take into account the fact that women may go through the menopause at a younger age, or the difficulty of proving the long term substantial effect.

Making menopause a specific recognised protected characteristic would remove these barriers and make it far easier for an employee to seek redress for any discriminatory treatment, including a failure by the employer to make reasonable adjustments. Examples of reasonable adjustments might include having fans at desks, adjusted work hours, uniforms appropriate for menopause or easy access to toilets.

If menopause were to be made a protected characteristic, it would require to be accompanied by a specific definition, as well as guidance for employers around when to make reasonable adjustments.

Day one flexible working

The third main proposal by the WEC is the right to request flexible working from day one. This was a common response within the WEC’s survey, which called for flexibility in hours and places of work, including working from home.

As such, the WEC is recommending that employees be given the right to request flexible working from day one. As it stands, employees must have worked for the same employer for at least 26 weeks to be eligible.

The future

The WEC also placed a call on the Government to appoint a Menopause Ambassador who would champion good practice, and sought the Government to produce model policies and trial specific leave.

As we know, however, it is not as straightforward as introducing a policy to prevent discrimination, and considerable work will need to be done to change societal pressures and views around this subject. We watch with interest for the changes, if any, to come.