Menopause and the world of work – Quick, quick, slow

The suggestion that the law does not serve or adequately protect menopausal women is not new.

Menopause is increasingly on the agenda as a workplace issue and employers who fail to support their menopausal employees risk claims being brought under both health and safety and discrimination legislation. Additionally, if the issue of menopause is mishandled, employers also risk reputational damage and their ability to attract and retain female talent. However, while media awareness is at new levels,legislative change appears stagnant.

In our previous article entitled 'Menopause and the world of work', we awaited the release of the UK based Women and Equalities Committee's report from their enquiry into menopause and the workplace. That Committee has now published their findings and we have summarised the key suggestions below. However, judging by the central Government's recent response to a separate report into the same issue, the introduction of new and bespoke legislation to protect menopausal employees appears to be low on the legislative agenda.

The legal position

Currently, menopause is not a stand-alone protected characteristic in either Northern Ireland or England. Typically, employees seeking redress must rely on the Health and Safety at Work (Northern Ireland) Order 1978 and indirectly on the existing protected characteristics of age, sex and disability in order to succeed in a successful discrimination claim. None of these 'routes' to justice are ideal.

The Women and Equalities Committee Report – Suggestions

In relation to legal reform, the Women and Equalities Committee (WEC) suggested two main amendments to the existing equality legislation. Firstly, the Committee suggested that Section 14 of the Equality Act 2010 should be enacted, which would allow affected individuals to claim for 'combined discrimination'. To evidence this, a successful claimant would need to establish that they were treated less favourably in comparison to another due to a 'combination of protected characteristics', for example (and in the case of menopause), a claimant could rely on a combination of the grounds of age and sex, or disability if relevant.

One problem of course for those of us in Northern Ireland is that the Equality Act 2010 does not apply here. That said, commentary on the Act in GB is worth following on the basis that outcomes from GB will likely be adopted here in due course.

The Committee also suggested that menopause should be acknowledged as a stand-alone protected characteristic in the Equality Act 2010, alongside existing protected characteristics such as age, sex and disability.

Government response – Independent report

In July 2022, the Government published its response to an independent report conducted by a 'Roundtable of Older Workers' which examined the menopause and employment. The report set out a number of recommendations for both the government and employers, addressing a range of issues.

Fundamentally, the Government's response, however, confirmed that there will be no change to the Equality Act to introduce specific protection for menopause as an additional protected characteristic. The Government has concluded that the existing protected characteristics of sex, age and disability already provided adequate protection against the unfair treatment of employees going through the menopause, and no additional protection is required.

What does this mean for employers?

Although the WEC report suggested that the equality legislation requires 'amendment' in order to be inclusive of menopause – given the Government’s recent response – it seems unlikely that there will be substantive changes made to existing legislation any time soon. Furthermore, the Equality Act 2010 does not apply to Northern Ireland. So while public and private sector awareness has been raised, there is no bespoke legislation on the horizon – hence the 'quick, quick, slow' of legislative protection for menopausal women.

Despite this, the focus on menopause in the workplace, and the pressure to improve the position for menopausal workers, is unlikely to diminish. Progressive employers would be well advised to take steps to support workers now, rather than wait for the introduction of legislation. This is not only an obvious response to the heightened awareness of the issue, but will illustrate proper consideration towards a workforce which can only generate better employee relations and go a long way in attracting and continuing to retain, talent.

We recommend that employers continue to raise awareness, carry out risk assessments, deliver training and review and introduce new policies that deal with the issue of menopause in the workplace.

If you require any further information in relation to this topic, please contact any member of ALG's Belfast Employment & Incentives team.

Date published: 2 August 2022