There is a strong case to add the menopause as a specific protected characteristic under the Equality Act. As it stands, where an employer discriminates against an employee because of issues relating to the menopause, the employee may possibly have grounds to bring a claim for sex, disability or perhaps age discrimination. However, this is far from clear, resulting in a lack of reassurance for menopausal women.
Sex or age discrimination may be too broad to adequately cover the specific issues associated with the menopause. As for disability discrimination, although the health impacts of the menopause for some women can be serious enough to meet the definition of a disability contained in the Equality Act, this will not always be the case.
This means that a large proportion of women may currently be missing out on this legal protection. In any event, many will feel that it’s not right or appropriate for the menopause to be treated as a disability.
However, adding the menopause as a protected characteristic in its own right is not as straightforward as it may initially seem. For example, with the protected characteristic of pregnancy, whether an employee is or is not pregnant, is fairly simple to demonstrate.
On the other hand, the menopause and its effects are often less visible and can vary significantly from woman to woman. As a result, we would expect any new legislation to focus purely on the effects of the menopause, similar to a disability, rather than the fact alone that the employee is menopausal.
Regardless of whether the menopause becomes a protected characteristic in its own right, employers should create an environment in which women feel comfortable talking with their manager, or with HR, about their experiences with the menopause, given the significant effects it can have. This is much more difficult to legislate for and so, in our professional opinion, guidance and training for managers is likely to have the greatest positive impact.
Andrew Crudge is an associate for employment and immigration at law firm Trethowans