Could menopause be the new protected characteristic under the Equality Act 2010?

“Suffering in silence is OUT! Reaching out is IN!”
Menopause mogul, Ellen Dolgen

Until fairly recently, the menopause was a taboo subject and certainly not something that required much serious consideration in the workplace. To change this, a list of well-known celebrities, including Davina McCall and Lorraine Kelly are backing a public awareness campaign by The Menopause Charity as it launches a set of five striking posters to highlight the importance of recognising a wide range of symptoms and asking for help.

All women will experience menopause at some point during their life. Menopause can also impact trans-men and non-binary people who do not identify as female. Most of those who experience menopause will do so between the ages of 45 and 55 while others start experiencing symptoms much earlier. On average, symptoms last between four and eight years, but they can continue for longer.

According to UK data, there were five employment tribunals referencing the claimant’s menopause in 2018, six in 2019, 16 in 2020, and more recently, there were 10 in the first six months of 2021 alone. It has been said that the rise in cases shows women are increasingly feeling empowered to challenge employers who do not understand the impact that menopause can have and offer them support.

In Merchant v BT plc, Ms Merchant was dismissed for poor performance. She had previously given her manager a letter from her doctor explaining that she was “going through the menopause which can affect her level of concentration at times”. The employer had failed to consider menopause as an underlying health condition and failed to follow the expected procedure of seeking a medical report to establish whether there was a link between the menopausal symptoms and the problems experienced, and the likely prognosis. On the evidence, the employer would not have adopted that approach with a non-female related condition or with a hypothetical male comparator. The manager's explanation for dispensing with normal procedure, namely that there was no need for medical investigation, was that his wife and a work colleague had gone through the menopause and there was no impact on their concentration. This was found to be irrational. The ET held that the claimant had suffered direct sex discrimination and the dismissal was unfair. By relying on his personal knowledge of his wife's and his colleague's menopause, rather than on medical advice, the manager had never been in a position to reasonably conclude that the employee was incompetent.

Women and Equalities Committee Call for Evidence

On 23 July 2021, the House of Commons Women and Equalities Committee launched a call for evidence into experiences of menopause discrimination in the workplace. It examines existing discrimination legislation and workplace practices, to consider whether enough is being done to protect women from discrimination as well as considering the economic impact of such discrimination. The call for evidence questions whether further legislation is required to allow those facing discrimination to enforce their rights and to enable employers to understand what is required of them in respect of these employees.

The call to evidence has heard from women who have been forced to use disability, sex or age discrimination legislation to seek redress. This is not always met with success as the menopause does not always sit neatly into those boxes. According to the Chair of the Committee, Caroline Nokes, some responses have indicated that menopausal women do not feel that they have adequate legal protection due to the lack of clarity in the legislation, leading those to bring claims for disability discrimination. The Committee is considering a change to the Equality Act 2010, to recognise menopause as a protected characteristic. As a reminder, the Equality Act 2010 states that it is against the law to discriminate against someone because of any of the nine protected characteristics. Submissions to the inquiry close on 17 September 2021.

Tips for employers

If employees feel that they are unsupported or negatively impacted in the workplace by their menopausal symptoms, they may seek redress through the employment tribunal.  There is a duty on employers to protect the health and wellbeing of their workforce, protect them from unlawful discrimination and not to behave in a way which undermines the implied term of trust and confidence. Employers can demonstrate their investment into the wellbeing of menopausal employees in the following ways:

  • Provide awareness training for the workforce about menopause by training on: health and wellbeing for which health and safety officers have a key part to play; initiating occupational health campaigns; training managers and discussing the topic at management meetings; and expressly mentioning menopause in diversity and equality training sessions.
  • Have informal support at work for those experiencing menopausal or premenopausal symptoms – such as workplace networks, online support groups and helpline numbers. 
  • Ensure that they operate a fair sickness absence policy which accommodates those suffering from menopause.
  • Improve the working environment including access to fans, good ventilation, the ability to control temperature, having clean and comfortable toilet facilities near work stations with appropriate sanitary disposal bins and feminine hygiene products and also have access to female-only showers if possible.

Could menopause be the new protected characteristic under the Equality Act 2010? The jury’s still out…

How can we help?

If you have any questions about what this means for you or your organisation, please get in touch with our specialist Employment team.

This article was co-written by Solicitor, Nikita Sandhu.

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