The government has rejected a call to make menopause a protected characteristic and to allow dual discrimination claims at employment tribunals.
In its response to the recommendations put forward by the women and equalities committee last year, the government suggested that making menopause a tenth protected characteristic under the Equality Act 2010, would not protect employees experiencing discrimination related to their menopause symptoms.
It says that sex, age and disability are all covered by the Equality Act and provide protection against unfair treatment of menopausal employees, and agreed with evidence from bodies including the CIPD and Business in the Community, which suggested that further legislation would be a “blunt tool”.
The government also rejected the recommendation that section 14 of the Equality Act be enacted. Section 14 includes a prospective provision for employees to bring dual tribunal claims for discrimination relating to a combination of protected characteristics, for example, age and sex.
Making menopause a protected characteristic
It says: “It is important to ensure that the policy is considered in the round to avoid unintended consequences which may inadvertently create new forms of discrimination, for example, discrimination risks towards men suffering from long-term medical conditions, or eroding existing protections.
“The more substantial the necessary changes to the 2010 Act are, the more likely it is that they would require a full-scale review of the Act.”
The government response to the menopause recommendations expresses concern over the additional burden that enacting section 14 would place on employers “particularly the potential for creating new areas of dispute over self-identity and concerns about hierarchies of rights”.
In a letter to health minister Maria Caulfield, women and equalities committee chair Caroline Nokes said the government’s response has “ignored the significant evidence base” for equality law reform.
“This belated response to our report is a missed opportunity to protect vast numbers of talented and experienced women from leaving the workforce, and leaves me unconvinced that menopause is a government priority,” Nokes said.
“For too long women have faced stigma, shame and dismissive attitudes when it comes to menopause. The evidence to our inquiry was crystal clear that urgent action was needed across healthcare and work settings to properly address women’s needs, yet government progress has been glacial and its response complacent. Its refusal to even consult on reforming equalities law doesn’t make sense and we urge it to look again.”
Other workplace-related menopause policy recommendations considered by the government included:
- The appointment of a ‘menopause ambassador’ to work with businesses, unions and advisory groups to encourage good practice. The government says it will appoint a menopause employment champion;
- The introduction of model policies for employers, covering reasonable adjustments requests, advice on flexible working, sick leave for menopause symptoms and provisions for building a supportive workplace culture. The government says it supports this ambition, but does not accept the recommendation as it does not feel a model policy is needed at the moment;
- Working with a large public sector employer to develop and pilot a specific menopause leave policy. This recommendation has not been accepted, with the government saying its aim is to support menopausal employees to remain at work, and introducing menopause leave may be counterproductive.
Kate Palmer, HR advice and consultancy director at Peninsula, said the government’s response represented a backwards step in the equality agenda, and urged employers to not ignore menopause.
“First, any health condition, including the menopause, may be considered a disability under the Equality Act if its symptoms cause a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities. Also, since only females, and those assigned female at birth, are affected by menopause, placing an employee at a disadvantage for a women’s health issue could amount to sex discrimination or harassment,” she said.
“Introducing a contractual entitlement to menopause leave could help affected employees. However, it may be more beneficial for organisations to instead implement measures to support them to continue working. For example, offering hybrid working arrangements and flexi-hours may allow employees to remain comfortable without losing out on pay or work projects.”
Emma Clark, a partner at Keystone Law, suggested that the number of employment tribunal claims for menopause-related discrimination were low, possibly because affected employees needed to rely on sex, age or disability discrimination grounds.
She said: “The lack of direct legislative protection is a key issue for menopausal people experiencing discrimination in the workplace. Claimants may not be aware that they can actually bring a claim or are unclear on what grounds they could complain.”
Rachel Credidio, chief transformation officer at housing association, Aster Group, said she hoped that the news would inspire organisations to find better ways to support employees experiencing menopause.
She said: “A critical part of our journey has been to raise awareness of the lesser-known symptoms and impacts of the menopause – from mood changes and anxiety to confidence and brain fog – so that our leaders across the business can better support their teams.
“As we’ve continued to develop our menopause strategy, educating all our employees about the subject has been a powerful tool. ‘Hot Topic’ forums to provide a safe space for colleagues to share their experiences, and ‘Sofa Sessions’ for external guest speakers, have encouraged colleagues to open up and improve awareness. This has been a critical step to including everyone in this conversation.”