In 2023, the Government encountered national pushback when it rejected calls to introduce Menopause as a protected characteristic under the Equality Act 2010 (“Equality Act”). It stated that sex, age and disability are all covered by the Equality Act and can be cited and used in discrimination claims in relation to Menopause.

On the 22 February 2024, the Equality and Human Rights Commission (“EHRC”) published guidance on Menopause in the Workplace: Guidance for employers (the “Guidance”).  However, if we pick apart the Guidance, legally the position has not changed.  Menopause is still not a protected characteristic but if the symptoms are potentially a disability (which is considered on a case-by-case basis against the legal definition), then the employer should consider reasonable adjustments.  Failure to make reasonable adjustments could amount to disability discrimination under the Equality Act.

Furthermore, the Guidance is not recommending any changes to the Equality Act 2010: “if you are discriminated against as a menopausal woman, there are existing laws you can use to take employers to a tribunal and take action against them,” said Health Minister Maria Caulfield.

Companies should also not overlook that discrimination based on Menopause is already prohibited under health and safety legislation, and employers have a legal obligation to conduct workplace risk assessments which should include the Menopause.

Stats

Let’s look at stats! Research from the Fawcett Society indicated 1 in 10 working women surveyed, felt their Menopause forced them to leave a job due to the symptoms they were experiencing. The Chartered Institute of Personnel and Development (“CIPD”), stated in their research, 67% of working women between the ages of 40 and 60, said that Menopause symptoms had a mostly negative impact on them at work.

Of this percentage:

• 79% said they were less able to concentrate;
• 68% said they experienced more stress;
• 49% said they felt less patient with clients and colleagues, and;
• 46% felt less physically able to carry out work tasks.

Legal Obligations for Employers on Reasonable Adjustments

“Reasonable adjustments are changes an employer makes to remove or reduce a disadvantage related to someone's disability.” – ACAS. Reasonable adjustments can be in a variety of forms including changes to workplace and specialised equipment. Employers must make reasonable adjustments but what classifies as reasonable is considered on a case by case basis. One must consider how affective the change will be balanced with how practical/affordable it is to make. Due to this, large companies tend to have a more onerous obligation than smaller companies.

The Guidance provides practical steps that Employers could take in regard to Menopause, for example but not limited to:-

• Providing rest areas for affected employees.
• Offering flexible hours to accommodate symptoms.
• Ensuring appropriate workwear (e.g., allowing cooler clothing).
• Time off if needed.
• Work from home option.
• Lower temperature in workspace.

It also reconfirms that disciplinary action for a Menopause related absence could amount to discrimination, and that language that ridicules someone's symptoms could constitute harassment. A video released by the EHCR stresses the importance of the Guidance "The costs of failing to make workplace adjustments for staff can run into hundreds of thousands of pounds when taking into account the loss of talent and costs of defending a claim."

Indeed recently we saw some employees of Avanti West coast feeling patronised by the handing out of “menopause bags.”, as some worry the aim to turn a natural process into a disability does not highlight the assets of older women in the work-place.

Other factors to consider

Individuals who are not employed by an organisation may still bring a claim for discrimination, and employers must be careful to ensure that their practices surrounding job advertisements and interviewing processes do not disadvantage applicants because of Menopausal symptoms.

Examples of areas to consider during the recruitment process in relation to Menopausal candidates are for example but not limited to: -

• Changing the job description or design – discriminatory wording should be avoided when relaying the job description.
• Tests – employers should think about their method of assessment and if it is fair to all groups.
• Interviews – Employers should take steps to prevent candidates from being disadvantaged, and provide reasonable adjustments, if possible, for example having cold water at hand, adequate air flow, allowing bathroom breaks.

This blog was co-authored by Laura Wharton and Hannah Jackson.