Written evidence from Brabners [MEW0071]

Background

Brabners is a leading independent law firm which helps private, public, third sector organisations and private individuals achieve their goals. It provides legal services to large and mid-sized businesses, SMEs, public sector bodies, charities, business owners, entrepreneurs and high-net worth individuals. The firm’s enviable client base covers sectors as diverse as charity, healthcare, housing and regeneration, media and technology, retail, manufacturing and supply chain, real estate, professional services, recruitment and sport. Brabners is home to nationally recognised experts in a number of practice areas and has nearly 400 colleagues working across its Liverpool, Manchester and Preston offices. The firm has been in business since 1815 and has an independent grant making charity the Brabners Foundation. 

Our award-winning Employment team is one of the largest, most specialised and respected legal teams in the North West, consistently ranked top in the legal directories.

We want to make a difference and help end the stigma around menopause in the workplace by helping to shape policy on this topic. Members of our Employment team have discussed the questions raised in the Call for Evidence. We have also engaged with our clients/ contacts to seek their views. The respondents hold roles including HR consultants, senior leadership roles such as HR Directors and from a variety of sectors including Recruitment, Management, Education and Finance.

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

There is a lack of knowledge and understanding about the menopause and how it impacts on individuals. This applies to those experiencing the menopause and wider society, including employers, line managers and colleagues. This view is supported by a number of our respondents.

Coupled with the stigma surrounding the menopause, many people do not feel comfortable discussing the menopause and/or addressing issues that arise in the workplace as a consequence, such as poor performance, mood swings and tiredness.

According to the NHS, the average age in the UK for a woman to reach the menopause is 51. Women over 50 are the fastest growing demographic in work. With the state pension age increasing and people living longer it is likely that more people experiencing the menopause will be in work.

There has been an increase in the number of Employment Tribunal claims being brought alleging discrimination as a result of experiences during the menopause. In our view, this does not in itself mean that discrimination (or alleged discrimination) is increasing. Rather, employees are more aware of the impact of the menopause and more likely to seek to hold their employer accountable for alleged poor treatment.

One of our respondents indicated that the nature and extent of discrimination faced by women experiencing the menopause is not reported in terms of the scale and impact that is actually occurring in the workplace. Another considered that there is a considerable amount of discrimination against women ‘of a certain age’, whether it be directly or indirectly linked to the menopause. Stereotypes and ignorance around the menopause compound the issue.

-              How does this impact wider society?

With an ageing population, and over 70% of women in the workforce (according to the House of Commons Library Briefing Paper, Women and the Economy), excluding those adversely impacted by the menopause from roles/promotion opportunities and/or subjecting them to treatment which means they feel they need to leave their roles, has and will increasingly have a major economic impact for the UK economy.

As well as a source of income, work can provide a sense of belonging and self- worth.  Leaving a job or being forced out due to discrimination can not only impact the individual and their family financially, it can also affect an individual’s confidence and lead to mental health issues (which may exacerbate mental health issues a menopausal woman is already suffering due to the transition).

The negative treatment of individuals experiencing the menopause has significant and extensive adverse societal impact.

2.              What is the economic impact of menopause discrimination?

The research report Menopause transition: effects on women’s economic participation considers the economic impact of menopause transition on women including that those who suffer more difficult menopause symptoms may face a greater economic impact, e.g., by leaving or losing their jobs or trying to manage their symptoms while remaining in work.

The type of costs to the women, employers and wider society of these scenarios are outlined in the report (page 64) and include lost wages and employment benefits, hiring and training costs (where somebody leaves/loses their job).

Those who stay in their job may face negative treatment from colleagues, loss of promotion opportunities and a reduction in working hours and productivity losses.

According to a study by Health and Her in 2019, the UK could be losing up to 14 million working days per year due to the menopause, with significant consequences for the UK economy. Other consequences include loss of confidence for the staff member and loss of productivity for the employer.

It is clear that menopause discrimination will exacerbate the economic impact on individuals experiencing the menopause (including but not limited to funding an employment tribunal claim, where one is brought). If individuals experiencing the menopause leave their job or reduce their hours, this leads to a reduction in salary, which has an economic impact on them and their family.

Anecdotally, respondents said they believed women face an economic impact as a result of menopause discrimination, including leaving employment; in turn this means businesses lose out on key talent and experience.

We believe that employees experiencing the menopause may feel forced to reduce their working hours and/or leave the workforce due to the menopause, both as a result of the lack of support whilst experiencing symptoms, but also as a result of the ingrained prejudice of managers/colleagues (including inappropriate behaviour/‘banter’ around the menopause). We suggest that more research is needed to understand the economic impact of menopause discrimination (something with which a number of our respondents agreed).

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

Business leaders and People professionals should have the menopause on their radar as part of their approach to health and wellbeing.

A range of measures are available, and employers should be open and creative in their approach, in a similar way to dealing with reasonable adjustments in the context of disability discrimination.

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

-              What are examples of best or most inclusive practices?

              Santander:

-              Introduced Peppy (a personalised menopause support service for employees providing advice and guidance as well as a chat service) as part of its benefits offering.

-              Holding menopause awareness sessions for staff and managers. The key message being menopause is an issue impacting everybody, irrespective of their age or gender.

              Aviva

-              Has an internal menopause awareness campaign.

-              Offers Peppy as a benefit.

              Channel 4

-              Introduced a menopause policy to support employees going through the menopause and provide guidance for line managers. In a very inclusive and forward-thinking approach, the company has made this policy available to other employers for free with the aim of making retention of expert women in employment easier. This allows other employers and staff to benefit from Channel 4’s knowledge and experience, hopefully improving the workplace experience for those affected by the menopause.

-               Adjustments have been implemented for employees, e.g. access to desk fans or a quiet or cool room.

-          Flexible working choices for those affected by the menopause to include more breaks, earlier start and finish times to avoid rush hour, request for a temporary reduction in working hours and being allowed to have their camera off during Teams calls. Paid sick leave has been increased and a counselling service introduced.

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

A variety of approaches to menopause transition at work are needed as experiences of the menopause can differ significantly from person to person. People who do not identify as women should be supported in the same way as people who identify as women, but with additional sensitivity, e.g.:

We advocate for further research in this area prior to commenting on whether specific additional support is required.

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

At present, menopause at work is covered by legislation to protect employees:

Importantly, menopause is not a ‘protected characteristic’ under the Equality Act 2010. Women seeking to bring claims due to discrimination in the workplace associated with the menopause currently need to bring claims of disability, age and/or sex discrimination depending upon their individual circumstances and, in the case of disability discrimination, the impact of the menopause on their day-to-day life.

Employees are not able to bring claims directly under the Health and Safety at Work Act 1974. Enforcement action is undertaken by the HSE.

Employees could, however, seek to assert that an employer has breached their common law duty to take reasonable care of the health and safety of employees. There is also an implied term in employment contracts that an employer will take reasonable care of the health and safety of its employees, on which an employee could seek to rely. In our experience such claims are uncommon (unless they form part of a wider claim, e.g., for constructive unfair dismissal) and they do not deal with the personal aspect of discriminatory treatment related to menopause, in the way that, for example, injury to feelings pursuant to the discrimination legislation does. 

-              Should current legislation be amended?

There is a sense that claims are being “shoehorned” into one or more of the existing protected characteristics. This can prove extremely difficult as the current legal tests are not designed to protect individuals from discrimination as a result of experiencing the menopause, e.g., the disability discrimination requirements mean that many employees who experience intermittent symptoms, or perhaps experience them over a short but intense period of time, would be denied protection. These provisions do not reflect the nuances of the different symptoms experienced by individuals experiencing the menopause.

Menopause discrimination can fall within age and/or sex discrimination. However, individuals going through the menopause may not have this awareness, which may prevent them from asserting their rights.

Our view, and one that was shared by a number of our respondents, was that a separate ‘protected characteristic’ of “menopause” should be considered (in the same way as for pregnancy/maternity). This reflects the fact that the impact of the menopause can greatly vary, but would provide all individuals with protection from discrimination and harassment.  We acknowledge, however, that it may be tricky to define a legally effective “start” and “end” point to when an individual is going through the menopause (and when the protection should therefore begin and end). This would require further consultation, with expert input.

If the menopause is not classed as a specific ‘protected characteristic’, we suggest that a statutory code of practice with associated penalties for non- compliance (e.g. uplift in compensation on successful Employment Tribunal claims related to the menopause or via an enforcement body) would be another option.

Practically, we also advocate for:

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

Legislation is not presently required to enable employers to implement such a policy. Many employers have already introduced policies/guidance without specific legislation covering menopause being in place. However, the introduction of legislation and/or statutory codes would force employers to adhere to minimum standards.

7.              How effective has Government action been at addressing workplace discrimination related to the menopause, and what more can the Government do to address this issue?

Our view is that Government has not been effective in addressing this issue, as demonstrated by increased lobbying in favour of legislation to protect individuals, going through the menopause, from discrimination at work. We note, however, that Government did commission research which resulted in the report, Menopause transition: effects on women’s economic participation. Government is also currently developing its Women’s Health Strategy, which could have an impact on the way menopause is dealt with in society and specifically in the workplace.

We welcome the new inquiry from the House of Commons Women and Equalities Committee, scrutinising existing legislation and workplace practices, questioning whether enough is being done to address the issue.

We acknowledge that Acas issued guidance on the menopause at work, including to help employers understand the impact of menopause, how to support employees and explaining applicable law, which is helpful, but it is not legislative change.  Our view is that the current legislation does not go far enough to protect individuals experiencing menopause and the associated symptoms. From our experiences as legal advisers, the lack of specific legal protection unfortunately means many employers may and do choose to disregard these recommendations.

Our view is that Government should introduce specific legislation to protect individuals experiencing the menopause by introducing it as an additional “protected characteristic”, along with specific Guidance/statutory codes setting out the expected behaviours of employers and colleagues in the workplace to give effect to this protection.

 

September 2021