The challenges of making menopause a protected characteristic

The government was heavily criticised over its decision not to make menopause a protected characteristic earlier this year, but doing so could have led to employers’ facing difficulties and employees becoming frustrated, argue Natasha Adom and Alison Sneddon of GQ | Littler.

Earlier this year the government faced a serious backlash when it rejected calls to make menopause a protected characteristic. Overwhelmingly many took the view that this unfairly blocked menopausal employees from discrimination protection. But is the situation as straightforward as it seems?

Current situation

Currently, employees discriminated against because of menopausal symptoms can bring discrimination claims on the grounds of sex, disability or age. There are hurdles to bringing these cases, particularly in demonstrating that symptoms are “long-term” or “severe” enough to be protected by disability discrimination (and, on a personal level, employees can find it jarring to have natural physiological changes labelled as a disability) and typically need to provide medical evidence to prove this. But is making menopause a protected characteristic the answer? What issues may arise by making menopause a protected characteristic?

In rejecting this proposal, rather controversially, one of the points the government made (being a point that was widely reported) was that adding menopause as a protected characteristic could have “unintended consequences which may inadvertently create new forms of discrimination, for example, discrimination risks towards men suffering with long-term medical conditions”.

However, it is not clear why the government assumed that giving one group enhanced protection does necessarily lead to others facing increased discrimination risk and the government did not explain why it believed this might be the case. Having said this, there are other legal and practical challenges involved in making this change. For example:

Defining menopause, for a start, is tricky. The symptoms and impact vary from individual to individual and diagnosis can also be problematic. Bearing that in mind even if menopause were a protected characteristic, it may well be the case that individuals would still need to provide medical evidence to prove that they are undergoing the menopause. Therefore, the protected characteristic status may not necessarily make it significantly easier to bring claims or prove entitlement to protection.

Then there is the question of broader impact. Discrimination laws under the Equality Act 2010 also apply to the provision of goods and services to the public and therefore this change would have a broader impact than on employment law alone, which requires detailed consideration.

A further issue is the risk of unintended consequences. As we know, while many women do suffer from menopausal symptoms many others do not. There is a risk that placing all menopausal people in a protected group could inadvertently stigmatise menopause and encourage what is a natural transition to be seen as automatically problematic. This may in turn make employers less likely to hire women of a certain age, counteracting initiatives to bring older workers back to the workplace. At the very least, alongside any such change, it would be important to promote increased awareness that the symptoms and impacts do vary.

Existing support measures

Since the government has made it clear that there is no plan to change the law, what existing measures are there for employers who want to support women affected by the menopause?

The existing measures in place are largely voluntary and taken up by employers who recognise the benefits of implementing support for menopausal employees, in particular to ensure talent attraction and retention. There is also increasing awareness of menopause and social pressure to take action. Measures that employers can consider include:

• the Menopause Workplace Pledge, signed by more than 600 organisations committed to creating workplaces that support menopausal employees
• the recently launched BSI Standard (BS30416) on menstruation, menstrual health and menopause in the workplace which includes guidance on: managing workplace culture to support menopausal employees; checking whether employment policies (ie, sickness, performance management and flexible working) consider menopause; and considering allowing flexibility within roles to allow for individual support (ie, through break times and comfort adjustments, such as localised fans to address vasomotor symptoms (hot flushes).

The government has also implemented changes designed to help support those going through the menopause, including:

• appointing a Menopause Champion with a focus on ensuring employers are engaged with supporting menopausal employees
• committing to regulating the supply of HRT to make sure it is accessible. This has included implementing changes to reduce HRT costs through the new HRT prescription prepayment plan aimed at making certain HRT prescriptions available for less than £20 per year.

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In this article where we have used the term “menopausal women”; this is not intended to exclude trans people with menopausal symptoms who do not identify as women.

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