Menopause rights: UK’s refusal to change law should still give employers pause for thought

The government may have rejected the idea of trialling menopause leave, but there’s still plenty that firms can do to support employees who may be struggling with the symptoms
Menopause In The Workplace

In its Menopause and the Workplace report of July 2022, the House of Commons Women and Equalities Committee recommended (among other things) that the Equality Act 2010 should incorporate the menopause as a specific protected characteristic. 

On 24 January, the government announced that it wouldn‘t be consulting on such an amendment or piloting a menopause leave policy with a large public sector employer, which the report had also suggested. In rejecting these proposals, it noted the need to ensure that any such reform wouldn‘t create new kinds of discrimination against other groups – for instance, men with long-term medical conditions.

Despite rebuffing these headline recommendations, ministers have responded more positively to some of the committee’s other proposals. For instance, they intend to appoint a so-called menopause employment champion to spearhead work with employers on workplace issues affecting women with the symptoms. This factor, along with a recent upsurge of media interest in the subject, constitutes at least a step in the right direction.

Menopausal women are starting to leave the workforce again in their droves, representing a huge cost to their employers

Women aged over 50 have been the fastest-growing group in the workforce for several years, which means that there has been a significant growth in the number of employees working through the menopause (and perimenopause). The symptoms, ranging from headaches and hot flushes to anxiety and depression, vary in frequency and severity from case to case, but many women find coping with them a challenge. 

Recent studies suggest that menopausal women are starting to leave the workforce again in their droves, representing a huge cost to their employers. The key to retaining them is to develop a culture in which they feel able to discuss such problems with their line managers and/or HR teams. 

Why employers must do more

Although menopausal employees won’t be granted specific protections under the Equality Act 2010 any time soon, employment tribunal records indicate that the number of cases involving the menopause is rising. Claimants usually complain of sex, age or disability discrimination by their employers after experiencing unreasonable treatment as a result of their symptoms.

In one case, a claimant had shown her manager a doctor’s letter explaining that she was menopausal, which could “affect her level of concentration at times”. Despite this, the manager chose not to investigate further – in breach of company policy – and simply dismissed her for poor performance. Upholding her sex discrimination claim, the tribunal stated that the manager wouldn’t have taken such a “bizarre and irrational approach with other non-female-related conditions”.

This issue is only going to become more prevalent at work in the coming years

Tactless remarks made by colleagues unaware of, or unsympathetic to, a menopausal worker’s situation could also be viewed as sexual harassment in the eyes of the law. In another case, a claimant told the tribunal that her manager had humiliated her in front of younger employees, who would laugh at his demeaning remarks. On one occasion he’d criticised her for failing to staple two sheets of paper together and related this to her being menopausal. The tribunal agreed that she had been harassed because of her sex and age.

Depending on the severity of their symptoms, menopausal workers may also be protected under disability discrimination law. In several cases, the detrimental effects that certain symptoms have had on a claimant’s daily activities have equated to disabilities. With this factor in mind, employers must consider the reasonable adjustments they can make to help employees in such situations. 

Managing the menopause at work

Employers have numerous other practical measures available to them, but they must be aware of the menopause and its potential effects. Developing a menopause policy, while not a legal requirement, will show that a firm is taking the matter seriously, address any underlying stigmas and highlight the support available. 

Managers should be given appropriate awareness training so that they can recognise that the menopause could be a factor when investigating problems such as a decline in performance and an increase in absences. Consider what reasonable adjustments might help menopausal employees, such as providing them with desk fans, allowing them to work from home and staggering their start times if the symptoms are particularly bad. Employers should also review their absence policies to verify that these are fair to menopausal workers.

As the state pension age edges upwards in the UK and people need to work longer, this issue is only going to become more prevalent at work in the coming years. Ultimately, retaining female talent makes for a more positive and diverse workforce. Keeping staff with years of experience in the workforce is good for business and the broader economy. 

Sara Wilson is a legal director specialising in employment issues at international law firm Charles Russell Speechlys