Government’s response to menopause recommendations in the workplace

The UK Government has recently rejected calls for the menopause to be made a ‘protected characteristic’ and for a large-scale pilot of menopause leave.

Proposals by the Women and Equalities Committee

On 28 July 2022, the Women and Equalities Committee – which is appointed by the House of Commons – published a report titled ‘. In this Report, the Committee pointed out challenges with the current law, such as the Equality Act 2010 having limitations as discrimination claims related to menopause had to be brought based on existing protected characteristics such as age, sex and/or disability. The Committee states four specific concerns with this:

“firstly, that the need for a comparator in direct discrimination cases makes it hard to argue menopause as direct age or sex discrimination. Second, the existing legal framework makes it hard to use indirect sex discrimination where the claimant has been penalised for menopause-related absences. Third, the concern that whilst most menopause-related claims end up being argued as disability discrimination, this is neither desirable nor straightforward. Finally, we consider the concern that although claims can be brought under more than one ground, there is currently no ability to argue combined discrimination, which fails to capture that menopause is an intersectional phenomenon.”

The Committee made the following recommendations for legislative reform:

• Introducing a Section 14 of the Equality Act which would allow discrimination claims based on a combination of two protected characteristics.
• Making menopause a new protected characteristic to provide clear protection for those experiencing discrimination due to having symptoms of the menopause. A disparity between pregnancy and menopause was stated, in that pregnancy is legally protected whilst the menopause is not, even though the menopause will affect every woman at some stage of her life, whereas not all women will experience being pregnant.

The Committee also made recommendations to the Government, such as:

• Piloting a menopause leave policy
• Appointing a Menopause Ambassador
• Publishing guidance on the legal considerations when supporting employees experiencing menopausal symptoms
• Consulting on introducing menopause as a protected characteristic, and including a duty on employers to provide reasonable adjustments for menopausal employees.

The Committee had previously conducted a survey on women’s experiences of the menopause in the workplace. See our article for more on this.

The UK Government’s position

The Government published its response to the Committee’s suggestions and recommendations on 24 January 2023. It confirmed that it would not be consulting on making menopause a protected characteristic under the Equality Act 2010, nor will it be trialling menopause leave for women. It cited that this could be discriminatory against men suffering from long-term medical conditions.

The Government has, however, stated that it encourages employers to be compassionate and flexible to the needs of their employees. It also supports more flexible working patterns and consulted on making flexible working the default position, unless an employer has good reasons not to provide this. There is a Bill currently going through Parliament to make an employee’s request for flexible working a day-one right and we await the outcome as to whether this will become legislation.

The Government has also announced it will appoint a Menopause Employment Champion – someone who will promote menopausal women’s economic contribution at work with employers and to keep people experiencing symptoms of the menopause in work.

Although the menopause will not be a standalone protected characteristic, affected employees may still be covered by existing protected characteristics. For example, any health condition – including the menopause – may be considered a disability for the purposes of   the Equality Act if it is a physical or mental impairment which causes adverse effects on an employee’s ability to carry out normal day-to-day activities, and this effect is substantial and long-term.

Message to employers

There is an increasing level of awareness of the menopause, which means this issue will continue to come under scrutiny ( see our article on what HR can expect in 2023)

Our advice to employees at work and provide reasonable adjustments where there are means to do so. Employers are reminded that they can go above and beyond what is legally required of them, for the health, safety and support of their employees, and that the rewards of this may be in the form of retaining talent as well as avoiding potential employment law claims.

Employers can also use Employmentbuddy’s Menopause Policy, and our employment team is available to help you if you need any assistance.