The Equality and Human Rights Commission (EHRC) has published new guidance on menopause in the workplace and set out employers’ legal obligations. The guidance reasserts the fact that women experiencing menopausal symptoms, particularly in severe cases, have certain protections under the Equality Act 2010.
While the menopause is not itself a protected characteristic itself under the Equality Act, this does not mean that employees cannot bring a discrimination claim. Sex and age discrimination are obvious potential risks when it comes to employees that are experiencing the menopause. Moreover, depending on the severity of the symptoms, employees could argue that they are in fact disabled and, therefore, have been subject to disability discrimination.
Indeed, recent employment tribunal cases have firmly established that the menopause can amount to a disability under the act, meaning that employees may be able to bring successful claims against employers which have not made reasonable adjustments. While currently uncharted legal territory, it may also be possible for someone who is considering, is undergoing or has undergone gender reassignment to bring a menopause-related claim for gender reassignment discrimination.
Beyond the EHRC guidance, there are a number of best practices employers should consider. These include implementing a formal menopause policy and recording menopause-related absences separately from general sickness absence. These kinds of actions, while not currently a legal requirement, may soon become so.
More generally, conversations about the menopause and its effects simply need to be normalised, not least in the workplace. Women affected by the menopause are almost certainly experienced employees, potentially in senior positions. Employers which fail to address this issue with due care and sensitivity not only risk legal liabilities but also the loss of valuable, potentially irreplaceable, talent from the workforce.
There are a range of positive actions employers could take to support women suffering from menopause symptoms, including reviewing benefits provision. Importantly, employers can be doing this whether or not a woman’s symptoms are so severe that she might be considered to have a disability. This might include comparative quick wins like providing access to health and wellbeing apps, through to larger scope initiatives such as incorporating clinical support for menopause into medical insurance cover or even helping to fund private hormone replacement therapy.
There are various things that are not menopause-specific that would help people at various life stages but could be particularly valued by menopausal women, such as providing access to onsite counselling or reviewing flexible-working provision.
Above all, a key step for many employers is simply to be raising awareness and improving the confidence of managers to deal with employees’ experience of menopause in a supportive way. All cases need to be individually assessed and employers need to be careful making assumptions about how women will react to the menopause. There is a long list of symptoms and each person will not necessarily experience them all at the same time, or some even at all.
Sally Hulston is a partner in the employment team at Lewis Silkin
