‘Menopause and the workplace’ — law change dismissed by UK Government

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Our employment team feature in a podcast on the topic of this article. Listen to the full discussion below.

What is menopause? 

The menopause is a natural part of ageing for a woman and can occur between the ages of 45 and 55, and on average, at the age of 51. Trans-gender men and non-binary people can also be affected and experience menopausal symptoms. 

During the menopause, a woman stops having periods as their natural estrogen levels decline. For some, periods may stop suddenly and for others, they usually start to become less frequent over a period of time, which can range between a few months or years before they stop altogether. There are some instances where the menopause can occur before 40 years of age, which is known as premature menopause or premature ovarian insufficiency, which affects approximately 1 in 100 women.

Listen to the article here.


What are the symptoms?
 

The severity of menopausal symptoms can vary in duration, severity and for some, they can have a significant impact on everyday activities. Most women will experience menopausal symptoms, and these can begin months or even years before a woman’s period stops and can last for around 4 years after her last period (although some women experience this for a lot longer).  

Some common symptoms consist of hot flushes; night sweats; mood changes such as low mood or anxiety; difficulty sleeping; problems with memory and concentration and much more. The decrease in the body’s production of estrogen can affect many parts of the body, the brain, the skin, and the strength and density of the bones. Also, menopausal women face an increased risk of osteoporosis and there is evidence to suggest that the fall in hormone levels can increase vulnerability to heart disease and strokes. 

Menopause and the workplace 

The Women and Equalities Committee published a report in July 2022 which called for reform to the current law surrounding menopause to protect the rights of women. Inquiries and surveys were carried out during the course of preparing the report and found that 3 in 5 menopausal women (usually aged between 45 and 55) were negatively affected at work and approximately 900,000 women in the UK have left their jobs because of menopausal symptoms. 

12 recommendations were made by the Committee aimed at protecting menopausal women from societal stigma, inadequate diagnosis and treatment, workplace detriment and discrimination. Among other things, the report recommended that the UK Government should: 

  • appoint a ‘menopause ambassador’ to work with stakeholders from business, unions and advisory groups to encourage and spread awareness, good practice and menopause guidance to employers; 
  • in consultation with the menopause ambassador, produce model workplace menopause policies to assist employers; 
  • work with a large public sector employer to pilot a specific ‘menopause leave’ policy; 
  • introduce sex and age as a single dual protected characteristic under the Equality Act 2010; and 
  • launch a consultation on how to amend the law to make menopause a separate protected characteristic under the Equality Act, and to afford menopausal women with the right to reasonable adjustments at work. 

UK Government response  

The Government accepted some recommendations made by the Committee in their response in either whole or part, in particular: 

  • appointing a menopause ambassador; 
  • launching a menopause public health campaign; 
  • reducing the cost of HRT prescriptions; 
  • removing dual prescription charges for oestrogen and progesterone; 
  • introducing the right to request flexible working as a day-one right. 

However, the Government did not accept many of the recommendations referred to in the section above concerning the law on menopause and introducing policies to protect menopausal women’s rights, all of which could have made a substantial impact if implemented. 

The Chair of the Women and Equalities Committee, Ms Caroline Nokes MP, described the Government’s response as disappointing and a ‘missed opportunity to protect vast numbers of talented and experienced women from leaving the workforce’. Ms Nokes says that the evidence to the inquiry was clear that urgent action was needed across healthcare and work settings to properly address women’s needs, yet the government progress has been “glacial” and its response “complacent”.  

Menopause as a protected characteristic 

The decision to reject the recommendation to launch a consultation on how to amend the law to make menopause a separate protected characteristic was justified by the Government in their response as follows: 

“to avoid unintended consequences which may inadvertently create new forms of discrimination, for example, discrimination risks towards men suffering from long-term medical conditions, or eroding existing protections. The more substantial the necessary changes to the 2010 Act are, the more likely it is that they would require a full-scale review of the Act.”

The Government’s response to rejecting this recommendation rests on the basis that creating a protection only afforded to women may inadvertently discriminate against men, but with the UK economy in such desperate need to retain talent and ensure more women are economically actively in later years, and to repair the damage caused by the pandemic, a consultation at the least to investigate this further would have been sensible and pragmatic. Understandably, the refusal of this recommendation has caused frustration for Ms Nokes who urges the Government to reconsider, she has said that ‘a refusal to even consult on reforming equalities law doesn’t make sense’.  

The Government’s rationale that it would inadvertently discriminate against men also fails to recognise that the Equality Act already includes protected characteristics which are afforded to women only, namely pregnancy and maternity. This recognition of pregnancy as a protected characteristic avoids a pregnant woman having to compare her treatment to an unfit male in order to allege unlawful discrimination. For the same reason, the fact that menopausal symptoms are uniquely endured by women should not be a basis to deny it being a protected characteristic.  

The Government claims that the protection sought by the Committee in their report is adequately provided for under the current provisions of the Equality Act. However, the existing protections of age, disability and sex do not fit neatly with the unique combination factors concerning menopause and therefore, women who are discriminated against because of their menopausal symptoms are put off bringing claims because of the uncertainty of the outcome, and ultimately would have to establish their menopausal symptoms are severe enough to amount to a disability and trigger a duty to make reasonable adjustments, or alternatively they had been treated less favourably than a hypothetical younger employee, or male employee, suffering similar health conditions.  

Menopause policies 

The Government does not consider a menopause leave policy as necessary and claims it is ‘counterproductive’ to achieving the goal to support menopausal women to remain in the workplace.  

The Government also considers that model menopause policies to assist employers (which cover advice on flexible working, sick leave for menopause symptoms and more) are not necessary at the moment and they are confident that work in this field is already underway. The Government consider signposting employers to relevant policies within their industry will be more effective, as employers can then adapt and tailor those policies to make them appropriate to their organisation.  

Where Next? 

For the time being at least, no new material legal protections will be introduced to employees with menopausal symptoms, meaning they need to rely on the Equality Act 2010 as it stands in terms of sex, age or disability discrimination and having to rely on inappropriate comparators to establish less favourable treatment, and their rights remain inferior to those of pregnant employees. Whilst awareness of menopause in the workplace is growing and is no longer the taboo subject it was in previous years and employers will voluntarily introduce menopause policies, many women will still face huge difficulties remaining in work as they enter their fifties, and will choose to fall out of work rather than assert any legal right they may have.   

We have no doubt that worker rights will be a central area of debate in next year’s general election, and a major part of this will be the implementation of specific protections for employees with menopausal symptoms.

 If you have any questions about the rights of your employees, please contact our employment team.