Menopause issues in the workplace

• Global

• Employment law
• Consumer

15-11-2022

Diversity, equity and inclusion (DE&I) continues to be high on the agenda in the consumer and retail sectors. Businesses are increasingly mindful of the importance of DE&I in retaining and attracting staff and how vital responsible business practices are in the environment where consumer expectations, and the ability to call out poor practice quickly and disseminate opinions widely, are high. 

The UK has a strong legacy of protecting employees through robust discrimination legislation, including the protection of individuals in circumstances where they can be particularly vulnerable in employment, such as during pregnancy. However, in contrast to this background, the law does not specifically protect people going through the menopause. This is despite the fact that approximately half of the population will experience the menopause, sometimes with significant physical and psychological impact.

It is estimated that 13 million people in the UK are currently going through the peri-menopause or menopause. With the retail trade being one of the sectors with the most women in employment, the relevance and potential impact on employment in the consumer sector is easy to see.

Assessing the impact and the Government’s response

A survey conducted by the Chartered Institute for Personnel and Development in 2019 reported that “Three out of five (59%) working women between the ages of 45 and 55 who are experiencing menopause symptoms say it has a negative impact on them at work”.  

Coupled with evidence of significant numbers of people in the UK leaving their jobs because of menopausal symptoms, The House of Commons Women and Equalities Committee (WEC) launched an inquiry in 2021 to examine the extent of discrimination faced by menopausal people in the workplace and to investigate what changes could be made to better support those experiencing the menopause. The WEC found that menopause discrimination in the workplace is "widespread", with evidence before the inquiry highlighting the anomaly of the different treatment of pregnancy and menopause in both the workplace and wider society. It called on the Government for legislative reform, including for the menopause to be made a protected characteristic and a duty to make reasonable adjustments.

In 2021, The Department of Work and Pensions commissioned the Menopause and Employment report, which made several recommendations to the Government. Following the report being published, the Government published its response in July 2022. Although deciding not to change the law, the Government made a number of commitments, including to back a campaign which focuses on communicating with employers and employer organisations about how they can support staff going through menopause.

The latest inquiry on this topic was carried out by the All-Party Parliamentary Group on Menopause, which was established to assess the impacts of menopause and the case for policy reform. The Report published in October 2022 states that “widespread action is needed across all spheres to improve the situation for those going through the menopause” and highlights the growing “socio-economic divide” between those with access to the right treatment and those without. In a similar vein to previous reports, it encourages the Government to “take decisive action to improve the menopause landscape”.

Risk factors for consumer sector businesses

The various investigations and inquiries into the impacts of the menopause have consistently highlighted the impact on work of those experiencing the menopause. With ongoing press coverage of this once taboo health and wellbeing subject, the topic is now firmly in the spotlight for both employers and employees.

Aside from health and wellbeing issues, tackling attitudes and having in place effective policies on the menopause in the workplace is now a key piece of the DE&I jigsaw. Failing to take action not only has the potential to set-back strides made in an organisation’s DE&I strategy, but also has the potential to impact other areas, including litigation risk profile.

Despite the absence of menopause as a protected characteristic in its own right, issues connected to the menopause can lead to claims of sex, age and/or disability discrimination. As recent cases in the employment tribunal have highlighted, there is an ongoing uptick in recent cases linked to menopause issues. In particular, employment tribunals have accepted that serious menopause symptoms and effects have the potential to constitute a disability. Further, that sex discrimination can potentially arise where harassing comments are made linked to the menopause or where employers fail to take account of whether menopausal symptoms are contributing to poor performance.

What’s next?

Although it currently seems unlikely that legal reform will take place in this area, a number of steps are ongoing to address other ways in which menopause issues can be tackled, including in the workplace. A UK Menopause Taskforce has been established, consisting of Government ministers and senior clinicians tasked with sharing best practice across the four nations and identifying areas for improvement. In addition, a Women’s Health Ambassador for England has been appointed, with a remit including raising the profile of women’s health and increasing awareness of taboo topics, including the menopause.

Employers can expect to see guidance being produced by Government bodies and employer groups on the considerations and best practice when supporting employees through the menopause. ACAS has already published such guidance. Further direction is expected from the Health and Safety executive and the Equality and Human Rights Commission in due course.

How we can help

For employers, the menopause is both a DE&I issue and a health and wellbeing concern. Our teams of lawyers have extensive experience in supporting consumer sector businesses in sensitively and effectively addressing such issues. Whether that be advising on strategies to effectively address menopause in the workplace, preparing menopause policies, supporting training, or assisting with litigation issues, our teams are here to help.