Employers are waking up to women’s health and our legislation is not keeping up with the workplace. In light of that, 2024 will likely see renewed focus on the need to support women's health in respect of menstruation, menopause and fertility.
The younger generation seems less embarrassed about informing colleagues that they have their period and employers are facing up to the fact that menstrual pain can constitute a disability. Menstruation policies are slowly becoming a consideration and 2023 saw some organisations, including Channel 4, launching a dedicated period policy.
The government missed an opportunity in 2023 to class menopause as a protective characteristic under the Equality Act 2010. This leaves menopausal people in the unpalatable position of having to pigeonhole their treatment into a case of disability, sex or age discrimination. The government chose not to provide any model workplace menopause policies for employers. However, the Advisory, Conciliation and Arbitration Service has provided helpful guidance on its website.
The employment tribunal cases continue against this backdrop and the Scottish employment tribunal determined in July 2023 that a menopausal woman was unfairly dismissed and subjected to harassment because of her sex.
Employers that want to be ahead of the curve are starting to inform their staff on what support is available. They are also seeking to avoid a high-profile employment tribunal claim. As such, we should anticipate that 2024 will see more employers choosing to draft menopause policies on a voluntary basis.
While there is no statutory right to take time off work to attend IVF treatment, employers often cover such absences similar to any other medical appointment or sickness, but, once again, there is a gap in the legislation for people going through fertility treatment. A parliamentary debate was scheduled to take place in November 2023 on fertility treatment and workplace rights, but it was unfortunately cancelled. We should expect to see these discussions revived in 2024 and anticipate many employers will draft a fertility policy as part of their equal opportunities suite of documents.
These three policies form part of staff wellbeing and help to encourage open conversations in the workplace. Employers should also consider updating their existing policies, such as equal opportunities, flexible working, and sickness absence, and train staff on women's health in the workplace if they want to retain and recruit more women.
Emma Clark is an employment and partnership lawyer at Keystone Law
