Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Menopause affects 51% of the population and women of menopausal age are the fastest growing group in the workforce. The UK government’s legislative approach to supporting women in the workplace going through menopause, however, remains in flux. What is clear is that menopause is staying on the agenda as a hot topic issue for employers, and we’ve written previously about why savvy employers should prioritise discussions on the menopause, in order to retain talent and improve employee wellbeing and productivity.
The political landscape in this area has been changing in recent months, the backdrop to this being the publication of the following:
- An independent report – this report was commissioned by the previous Minister for Employment and published in November 2021. The report recognised that, among other issues, menopause is a key recruitment and retention issue and that there is a real lack of awareness around menopause in the workplace. The report made ten recommendations for change in this area. We refer to this report as the “Independent Report” in this article.
- The government’s policy paper – the UK government published its policy paper ‘Response to Menopause and the workplace: how to enable fulfilling working lives’ in July 2022, in response to the Independent Report. Interestingly and disappointingly for some, the government’s response confirmed it has no plans at present to change the Equality Act 2010 (the “EqA”) so that the menopause itself would become a characteristic specifically protected by discrimination legislation. The policy paper reasoned that the existing protections against discrimination on the basis of age, sex and disability cast the net wide enough to offer protection from a legal perspective. We refer to this policy paper as the “Policy Paper” in this article.
- The Woman and Equalities Committee report – this is a separate report by the Women and Equalities Committee (an independent Committee made up of members of parliament across all political parties), also published in July 2022. This report takes a different tact and asks the government to make two main legislative reforms: firstly, that menopause be acknowledged as a standalone protected characteristic in the legislation (a point which the government’s Policy Paper has already made clear is not on the agenda) and secondly, that a section of the EqA be enacted to allow claimants to bring a discrimination claim, for example, on the basis of a ‘combination of protected characteristics’. We refer to this report as the “WEC Report” in this article.
The government’s current state of play
The government’s Policy Paper makes commitments (some more nebulous than others) that show the government is at least recognising the importance of the issue which parliament, employers and wider society are already addressing.
- Appointing the first Women’s Health Ambassador to focus on raising the profile for women’s health;
- Appointing one or more ‘Menopause Employment Champions’ to give a voice to menopausal women, promoting their economic contribution, and working with employers to keep people experiencing menopause symptoms in work and progressing;
- Supporting benefit/welfare claimants aged 50 and over to stay in work, by supporting work coaches and employers to understand the needs of older job seekers, including menopause;
- Having ‘Menopause Employment Champions’ spearheading the employer-backed campaign which includes increasing the reach of menopause communications, providing content and ‘trusted voices’ on menopause, providing links to advice, guidance and best practice case studies to employers and supporting businesses when producing their own communications and working practices for supporting women through the menopause;
- ‘Encouraging’, but not requiring, employers to ensure their Employee Assistance Programme offering includes menopause support (whilst recognising that small employers may struggle to offer this service); and
- ‘Exploring’ the options for additional support for women’s reproductive health issues in the workplace, including menopause, through a newly created Health and Wellbeing Fund.
Legislative change not on the horizon
The news in the Policy Paper that legislative change is not on the horizon, and menopause will not be granted the status of a standalone protected characteristic, has been disappointing for some employees and employee groups. In its Policy Paper, the government writes that the protected characteristics of age, disability and sex already protect employees going through the menopause and that this is borne out by recent cases which show employees have been able to challenge discriminatory treatment by employers on the grounds of one of the existing characteristics.
However, without legislative change, some women may ‘fall through the cracks’ of the existing legislation if they are not able to meet the threshold of one of the protected characteristics, or adequately prove to a court that they were treated less favourably as a result of having multiple protected characteristics (which would arguably be easier if menopause was included as a protected characteristic). For example, if a woman had only been experiencing menopausal symptoms for a short period, she may not be able to make out she had a disability, or if a woman experiences menopause at a particularly young age (1 in 100 experience menopause before turning 40), making out an age discrimination claim may be difficult.
The practical significance of this, if any, remains to be seen. In the UK, the chance of success in a discrimination claim across all protected characteristics is still very low with the statistics from the last 3 years of claims placing this at 1-3%. It’s not clear whether introducing menopause as a standalone protected characteristic would have made any real difference to these success rates, albeit it may have encouraged employers to more closely consider their practices in this area.
In the absence of legislative change, it seems that the real task for now is to create more awareness and provide education to employers about how menopause can affect their employees, and how best to provide support, empathise and make appropriate adjustments – which the government appears to be committing itself to.
This is no doubt a complicated area of law, and for the meantime, the government doesn’t look like it is substantively engaging with the debate as to whether legislative changes are required.
What should employers do now?
What isn’t in dispute, however, is the increasing interest employers are showing in this topic and broader women’s health matters. We are increasingly seeing clients introduce menopause, miscarriage and pregnancy loss policies following consultation with employees and employee diversity and inclusion groups. Savvy employers are recognising that, even if the government doesn’t mandate it, there are significant benefits in these policies in the form of staff retention and increased engagement.
It remains to be seen whether the government’s Policy Paper will push employers to take even more action in this area though the Policy Paper definitely suggests that this will be the direction of travel.
At this stage, it’s worth employer’s considering:
- What their workplace demographic is and whether broader policies supporting women’s health could not only support their employees but also their diversity, equality and inclusion strategies;
- Whether they could benefit from training, and guidance, from specialist menopause organisations and charities (we’ve listed some in our previous Q&A here);
- Whether any broader policies/practices that impact women’s health in the workplace should be reconsidered. For example, we’re seeing employers extend their parental bereavement leave policies to encourage employees who suffer a miscarriage to reach out for help and also offering these employees 2 weeks leave (which, under the existing parental bereavement laws, is only available in the event of a stillbirth at 24 weeks of pregnancy or death of a child under 18).