Menopause and Discrimination within the workplace

Last month the Government published its response to the House of Commons Women and Equalities Committee (WEC) report titled Menopause and the workplace which was published back in July 2022.

The WEC report made various recommendations relevant to the workplace including that the government should launch a consultation on how to amend the Equality Act 2010 to introduce a new protected characteristic of menopause, including a duty to provide reasonable adjustments for menopausal employees.

This may have been influenced by the analysis carried out by Menopause Experts Group, which found that the number of menopause-related employment tribunal claims had increased by 44% in 2021 up to 23 cases. These cases included claims for disability discrimination, unfair dismissal and discrimination based on sex.

In addition, there are increased rates of women aged 50 and above in employment, resulting in more working women experiencing menopause during their working life. In recent statistics, published on 14 February 2023 by the Office for National Statistics, the percentage of women aged 50-64 in employment in the UK, from October 2022-December 2022, was 66.8%. This is not the complete extent of those who may suffer from the effects of menopause in the workplace, as it is unlikely to take into account trans and non-binary people who may not identify as female but who may still be affected by menopause.

The recommendation made by WEC was not accepted by the Government. This means that an employee cannot claim to have been discriminated against because they   experience symptoms of menopause alone.  An employee would need to link the discrimination with one of the nine protected characteristics under the Equality Act 2010: disability, age, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

In their response the Government highlighted Unison’s view that “legislation which should protect employees experiencing menopause is in place. Under the Equality Act 2010, menopause should largely be covered under the 3 protected characteristics of age, sex and disability discrimination.”

Therefore, as a result, menopause in itself  is not protected; however, the symptoms of the menopause can amount to disability, as highlighted in some  disability discrimination cases. Alternatively, an employer’s treatment of employees of a menopausal age can amount to discrimination based on sex and/or age, under which employees may be able to may be able to make a claim.

The one element of the WEC report that the Government partially accepted was regarding the publication of Health and Safety Executive and the Equality and Human Rights Commission guidance supporting employees experiencing menopause. They are working on developing strengthened guidance setting out clear and simple principles employers should apply to support disabled people and those with long-term health conditions in a work environment. However, this will not be specific to menopause. It is due to be published in autumn of this year.

If you would like some insight into cases which include menopause factors in connection with both disability and sex discrimination, please have a read of my colleague Aaron’s blog from last year: ‘Growing Calls for Employers to Introduce a Menopause Policy’.

Should you require any further information or assistance please do not hesitate to get in touch. FJGs friendly Employment Law team is available on 01245 890110 or contact us