Written evidence from M Downie, Academic Strategic Lead at Robert Gordon University Law School [MEW0062]

 

What is the nature and extent of discrimination faced by women experiencing the menopause? 

 

 The literature[1] and case law (discussed below) suggests that women experiencing the menopause do face discrimination in the workplace however the extent of that discrimination is difficult to quantify. Recent studies on menopause in the workplace conclude that the symptoms of menopause impact on women’s ability to carry out their work and that they would like to see some adjustments being made to the working environment to alleviate some of the problems they face. They are also reluctant to discuss the issue with managers. There are relatively few reported cases of discrimination involving menopause (see below) but as menopause policies and training become more common, HR professionals and line managers are seeing more women raise this issue as menopausal workers are being encouraged by various campaigns to talk about this subject.

 

How does this impact wider society? 

 

The number of women who are menopausal and perimenopausal in the workplace is significant[2] and these workers and their dependents are financially impacted if they are forced to give up work because of menopausal and perimenopausal symptoms. These workers have a great deal of experience which is likely to be lost to the economy, loss of revenue to the state and a burden on the state by way of benefit payments if they are forced to give up work prematurely.

 

 What is the Economic impact of menopause discrimination?

 

 Failure to address the issues of menopausal workers will result in financial impact to the employer in terms of loss of productivity and expense of recruiting in the event of these workers having increased absence rates and possibly leaving the workforce. There will be a financial cost to the start in terms of increased benefits and loss of tax revenue. There may also be an increased burden on the NHS.

 

How can businesses factor in the needs of employees going through the menopause?

 

Businesses should have a policy for supporting all workers (not just menopausal workers) supporting menopausal workers should be a part of this policy to avoid labelling workers of a certain age as specifically needing support. This policy should include making reasonable adjustments to support workers.

Businesses should educate and train managers in the symptoms of menopause, how to recognise and support menopausal workers without labelling them or making assumptions and recognising that everyone who experiences menopause has a different experience / different range of symptoms and make reasonable adjustments to support those going through the menopause and perimenopause.  

 

How can practices addressing workplace discrimination relating to the menopause be implemented? For example, guidance, advice, adjustments, or enforcement? 

 

It is important that guidance and advice is readily available to employers. Although some advice is already provided by organisations such as ACAS more could be available.  Education and training particularly of managers is key. Guidance and advice should be available to all workers. Workers suffering from menopause must feel comfortable disclosing their symptoms. Adjustments should be made to working practices where necessary e.g. better ventilation flexible/home working.

 

What are examples of best or most inclusive practices?

 

 Best practice is where an employer provides a policy on menopause (or includes it in a wider wellbeing policy, trains line managers to recognise the issues menopausal workers may be facing and provides an environment where workers feel able to discuss their issues relating to menopause. There are now many menopause policies and training of staff.[3] Some of these could be more inclusive by using broader definitions to ensure that all workers who are menopausal are included.

 

How should people who experience the menopause but do not identify as women be supported in relation to menopause and the workplace?

 

There is a gap in the literature as to the experiences of these workers. Training, guidance and policies must specifically mention this issue which may not be obvious to all employers. All people suffering menopausal and perimenopausal symptoms must be included in protection against discrimination,

 

How well does current legislation protect women from discrimination in the workplace associated with the menopause?

 

The Equality Act 2010 (2010 Act) provides protection against discrimination. Protection under the 2010 Act against discrimination is available from day 1 of employment (or even before). There is no need for a period of qualifying service to make a claim. However, the protection offered by this Act does not extend to the self-employed. The main issue with the 2010 Act is that to make a claim under the 2010 Act the claimant must bring the claim under one of the existing protected characteristics and if that cannot be done the claim will fail. 

Menopause is not a protected characteristic. Claims are most likely to be brought based on the protected characteristics of sex, age or disability. Three examples from the case law are Merchant v British Telecom plc [2012] 1 WLUK 683 EAT where the claim was successfully based on sex discrimination and Davies v Scottish Court Service [2018] 5 WLUK 156 where a claim was successfully based on disability discrimination and A v Bonmarch (in administration) ET 4107766/2019 where a claim for harassment was based on sex and age discrimination. The 2010 Act has various gaps in the protection. Bringing a case under sex discrimination may be problematic for non-binary workers. Using age discrimination may be difficult for someone suffering from an early menopause. Neither of these protected characteristics offers a right to reasonable adjustments. Disability discrimination which is the only protected characteristic to offer a right to reasonable adjustments does not apply until the symptoms are severe enough to have an adverse effect on ability to carry out normal day to day activities and this protected characteristic does not provide protection from harassment and victimisation until the worker can be regarded as disabled.

Employees are also offered protection from unfair dismissal (including constructive dismissal) by the Employment Rights Act 1996. In bringing a case under the 1996 Act the main gaps in protection are that there must have been a dismissal before the protection applies and the protection only applies to workers who meet the strict definition of employee under that Act.  The unfair dismissal provisions of the 1996 Act do not provide protection whilst still employed. There is a right for those who meet the definition of employee to request flexible working under the provisions of the 1996 Act but the employer has a range of reasons to refuse that request and the remedy for an unreasonable refusal of a flexible working request is relatively weak.  There are also protections available under health and safety legislation however these are generally not enforceable by the individual.

It can therefore be seen that the current legislation does not provide comprehensive protection.

 

Should current legislation be amended? 

 

The legislation requires to be amended to fill the gaps in protection identified above. This amendment would need to be more than simply making menopause a protected characteristic. While it is recognised that menopause should be regarded as a natural life stage rather than a disability, it does not automatically follow that the existing law requires to be amended to include menopause as a separate characteristic. Not all women suffer from severe menopausal symptoms and not all may wish to be labelled as vulnerable because of their menopause.  If it was a separate protected characteristic there would be problems of definition. Unlike pregnancy it is not easy to diagnose menopause and identify a date when the menopause began and ended and therefore the protection applied or ceased to apply. This would be even more difficult because many of the symptoms which affect workers suffering from menopause are actually related to perimenopause. The existing legislation may offer sufficient protection. Claims made under the protected characteristics of sex, age and disability offer protection against direct and indirect discrimination as well as harassment and victimisation. Claims made under the protected characteristic of disability have several advantages. In addition to the claims of direct and indirect discrimination there is the possibility of a claim of discrimination arising from disability which could prove very useful in a case involving menopausal/perimenopausal issues. There is no need for the symptoms to be definitively attributed to menopause provided they meet the definition of disability and once the claimant is regarded as disabled the protection would apply even after the symptoms subside. The employer is required to make reasonable adjustments, and this is exactly what menopausal workers require.  To include menopause as a separate protected characteristic in a similar fashion to pregnancy and childbirth would presumably remove the existing protections available under sex age and disability. Careful consideration should be therefore be given before including menopause as a protected characteristic in its own right as it may result in less protection being offered to workers who really need it whilst extending unnecessary protection to workers who are menopausal but not suffering from severe symptoms which impact on their work.

 

What further legislation is required to enable employers to put in place a workplace policy to protect people going through menopause at work?

 

Legislation requiring employers to include menopause in their policies and procedures and to require training and education of workforce and managers. It must be considered carefully whether this should be by way of a separate menopause policy or by inclusion of menopause as a specific example embedded in general policies and guidance. This could easily be achieved by amendment of existing Health and Safety and other legislation.

ACAS already provides guidance, but an ACAS code of practice (or specific inclusion in existing codes) would be useful.

 

How effective have Government action been with addressing workplace discrimination related to the menopause, and what more can the Government do to address this issue?

 

Raising awareness is important but there has been no effective action to date.

 

How effectively is the Government Equalities Office working across Government to embed a strategic approach of addressing the menopause in the workplace?

 

Although the Equalities office have clearly been active in promoting debate, it is not clear from their website what their role is in addressing this topic and this could be made more obvious. It remains to be seen whether their work id effective in embedding a strategic approach of addressing menopause in the workplace.

 

September 2021

 

 

 


[1] A comprehensive literature review can be found in J. Brewis et al (2017) The effects of menopause transition on women’s economic participation in the UK. Department of Education (2017)

[2] https://www.tuc.org.uk/sites/default/files/TUC_menopause_0.pdf

[3] See for example https://www.unison.org.uk/content/uploads/2019/10/25831.pdf   and https://www.eis.org.uk/Content/images/equality/Gender/Supporting%20Older%20Women%20in%20the%20Workplace.pdf