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As we approach World Menopause Day on 18 October, it’s a good time to reflect on just how far awareness of menopause in the workplace has come. Legal protections have developed in recent years but the business case for employers to do more to support women during menopause remains strong.
I first starting blogging and training on menopause over 5 years ago. It was considered one of those ‘taboo’ subjects, not much talked about at home or in the media – and definitely NOT in the workplace.
A lot has changed since then, fortunately. Many celebrities are vocal about the menopause and it’s great to see how far the conversation has moved on. You can now easily find sample menopause policies (I had to draft one from scratch many years ago) and there is so much more awareness generally. Many companies now have a specific menopause policy or have at least adapted existing policies.
Judging by a search on the Employment Tribunal decisions database, the number of ET cases has rapidly increased over the last 2 years. Of course, this does not include the cases which settled before the full hearing. More on this point later.
What is government doing about menopause?
In response to the growing awareness (and importantly) the frankly shocking lack of support for menopausal women* in the workplace, the House of Commons Women and Equalities Committee (WEC) launched an inquiry into ‘menopause in the workplace’ in 2021. I was part of the Employment Lawyers Association (ELA) group that contributed to this inquiry on the current position of the law.
The WEC published its report in July 2022, making several recommendations for government to consider. Here are some of the findings and recommendations:
• WEC found that the law ‘does not serve or protect menopausal women’. It considered that the Equality Act s. 14 (which is ‘shelf-ready’) should immediately commence as a partial solution. For you geeks out there this is the combined discrimination ‘dual characteristic’ clause which has still not become law in the UK
• a new protected characteristic of menopause should be created, which should include a duty to provide reasonable adjustments for menopausal employees
• a ‘Menopause Ambassador’ should be appointed to work with stakeholders from businesses, Unions and advisory groups to improve awareness and encourage good practice
• the government should launch a visible public health campaign highlighting menopause symptoms, impact and how to seek treatment and help (including support at work). The aim being to disseminate good quality, accurate information about menopause
• model menopause policies should be produced to assist employers and a specific ‘menopause leave’ policy should be developed and piloted by the government and a large public sector employer
• a ‘day one’ right to make a flexible working request and guidance should be produced on the legal considerations when supporting those with menopause
All good recommendations I hear you say. Yet, the government responded earlier this year roundly rejecting the majority of the recommendations. The only ones they indicated they accepted (and have since actioned) are:
1. Appointment of a Menopause Employment Champion – this voluntary post has been taken up by Helen Tomlinson in March 2023
2. Legislation to make flexible working request a ‘day one’ right is going through parliament
3. This Autumn should see the publication of updated and strengthened guidance from the HSE as to how employers will be expected to support disabled people and those with long-term health problems in work. This could, in some circumstances apply to those experiencing menopause symptoms in the workplace.
Menopause-related caselaw developments
Judging by a search on the Employment Tribunal decisions database, the number of ET cases has rapidly increased over the last 2 years. Of course, this does not include all the cases that were settled and didn’t go to a full hearing.
It’s often said that where parliament doesn’t act, case law steps in. Reviewing the last two years of ET decisions involving menopause issues, several themes are emerging;
1. Where the woman is (or has) experienced significant issues with menopause symptoms (like heavy bleeding in the peri-menopause, brain fog, anxiety, poor sleep and hot flushes), the ETs are now regularly finding (or the employer is conceding) that the person is ‘disabled’ for the purposes of the Equality Act.
2. Anxiety, (often associated with the menopause) in itself might not be enough to satisfy the definition of ‘disabled’.
3. That to use the term ‘menopausal’ women (taking into account the context) could amount to age or sex discrimination or both.
4. If someone is suspected of being menopausal, they are often considered ‘over the hill’ in the employment space – with the same standard not necessarily being applied to older men.
5. Comments such as ‘your husband must be looking for a younger model now’ were found to be both age and sex discrimination.
It is important to remember that ET decisions are not binding on other tribunals, but they do give an indication of how the ETs are looking at these types of issues.
Not all women will either wish to or be eligible for legal test of disability here. I know from speaking to many women about this that they don’t consider themselves ‘disabled’ due the menopause. What they really want is a mechanism where reasonable adjustments will be considered by their employer. However, as we always thought, the law of both age and sex discrimination can be used to give some protection also.
The business case for being ‘meno-friendly’
It remains my view and that of Menzies Law that it is better for companies and organisations to consider the business case for being ‘meno-friendly’, rather than focusing on which employment law rights are at play here.
There are so many benefits to being an inclusive employer, recognising the challenges that the menopause can bring and being ready to support employees. These include:
A useful guide for workplaces from the British Standards Institute
If you are looking for more insight, the British Standards Institute (BSI) has recently published BS 30416, Menstruation, menstrual health and menopause in the workplace—guide. The very useful 48-page guide which:
I am left feeling quietly encouraged that there is already more support around menopause in the workplace than there has ever been. There is no doubt still more that can be done and I look forward commenting on these developments as they happen.
*trans men and non-binary people may also be affected and impacted by its symptoms
We always welcome your thoughts and feedback and if you have a workplace menopause issue you’d like help on, please get in touch with us. 0117 325 0526 / email@example.com