The UK government has largely rejected recommendations to reform the existing legal framework for employees experiencing menopause, instead promoting employer-led education and support. In this article, we review the government’s response to the House of Commons Women and Equalities Committee’s (the “WEC”) July 2022 report, “Menopause and the workplace” (the “WEC Report”), and consider what it means for employers.
The WEC Report considered the ways in which menopause affects women* in work and, in its own words, “wanted to understand what drove women to leave their jobs, the impact on the economy of haemorrhaging talent in this way, and the legal redress for women who have suffered menopause-related discrimination.” It made a number of recommendations to address the needs of menopausal employees and drive change, ranging from the publication of guidance and the appointment of a Menopause Ambassador, to larger scale reform of the legal framework.
The government has now confirmed that it will not be adopting the majority of the recommendations. The Chair of the WEC has voiced their disappointment and concern with the response, deeming it a “missed opportunity”.
The Report’s main recommendations and the government’s responses relevant to employers and the workplace are summarised below.
– Appoint a Menopause Ambassador to work with business stakeholders, unions, and advisory groups to encourage and disseminate awareness, good practice and guidance to employers.
– Publish a six-monthly report on the progress made by businesses, including examples of good practice and, importantly, poor practice.
– Helen Tomlinson was appointed to the (voluntary) role of “Menopause Employment Champion” on 6 March 2023.
– The frequency of progress reports remains to be determined.
|Flexible working requests
– Bring forward legislation to make the right to request flexible working a day-one right.
– However, this change was already in the pipeline, so should not be viewed as a menopause-specific measure. The government’s response to a 2021 consultation confirmed that flexible working will become a “day one” right “when Parliamentary time allows”.
|Guidance on legal considerations
– Within the next six months, the HSE and EHRC should publish guidance on the legal considerations for employers when supporting employees experiencing menopause.
– Partially accepted.
– Strengthened guidance on supporting those with disabilities and long-term health conditions in the work environment will be published by the HSE. The government said it thought this guidance could also apply where employees are experiencing menopause symptoms, but there is no suggestion of any tailored guidance.
|Model menopause policies
– Produce model menopause policies to assist employers.
– Considered unnecessary in light of the “work underway already” (which is perhaps surprising given that most employers do not yet have menopause policies) and there being no one-size-fits-all approach.
– The focus will instead be on the Menopause Employment Champion highlighting and signposting best practice that can be adapted and tailored.
|Pilot menopause leave policy
– Develop and pilot a specific “menopause leave” policy within a large public sector employer.
– Evaluate the scheme within 12 months of commencement.
– Again, considered unnecessary and concern was expressed that menopause leave may be counterproductive to supporting employees experiencing menopause to remain in the workplace and ensuring employers are well-equipped to support their workforce during menopause.
– The focus will instead be on disseminating best practice and encouraging employers to implement workplace menopause policies and other forms of support (with no specific details provided).
|Combined / dual discrimination provision
– Immediately commence section 14 of the Equality Act 2010 which would enable employees to claim direct discrimination on the basis of a combination of two relevant protected characteristics (e.g. being an older woman).
– The current legislative structure does not allow for the relevant characteristics (i.e. sex and age) to be cherry-picked for implementation.
– Introducing dual discrimination for all relevant protected characteristics would place a “significant additional burden” on employers and service providers (creating an additional 20 dual protected characteristics), as well as creating new areas of dispute over self-identity and hierarchies of rights.
|New menopause protected characteristic
– Consult on how to amend the Equality Act 2010 to introduce a new protected characteristic of menopause, with consultation commencing within six months and reviewing whether the introduction of section 14 mitigated concerns about the current law.
– Employees experiencing menopause are protected by current legislation i.e. age, sex and disability discrimination. The introduction of a new protected characteristic is not the only approach, or necessarily the best approach, to addressing risks of discrimination.
– The introduction of a new protected characteristic may have unintended consequences (e.g. discrimination risks towards men with long-term medical conditions). This type of change requires full-scale review which can only be done as part of a wider reform of the Equality Act 2010.
The main takeaway is that the existing legal framework is here to stay and the government is expecting employers to take primary responsibility for driving awareness and support of menopause in the workplace (supported by the Menopause Employment Champion). With women over 50 the fastest growing demographic in the workforce, there are stark commercial (as well as legal and social) reasons to do so. Employers should also remain mindful of the discrimination risks under the current legal framework. Indeed, a growing number of Employment Tribunal claims reference menopause, with the Menopause Experts Group finding a 44% increase in cases citing the menopause from 2020 to 2021. Meanwhile, it is evident that steps are also needed to retain talent, maintain employee morale and reduce stigma. For example, the Fawcett Society found that one in ten women have left work due to menopause symptoms and that 41% of respondents had seen menopause or menopause symptoms treated as a joke by colleagues.
We can also expect employer support for menopausal employees to remain on the political agenda as the Labour Party last week pledged to introduce a requirement for large employers (250+ employees) to publish and implement a “menopause action plan” setting out how they are supporting their employees experiencing menopausal symptoms. The Party would also release government guidance advising employers on how best to support menopausal employees.
Steps available to employers to support employees experiencing menopause and enhance workplace culture include:
- Providing training, raising awareness and collating relevant information (such as via employee intranet sites);
- Making flexible working arrangements and accommodating other adjustments, such as to workplace temperatures and uniforms (if applicable);
- Developing a specific menopause policy, as well as reviewing and updating other relevant policies;
- Considering the needs of menopausal staff when conducting risk assessments; and
- Signing and taking positive action in accordance with the Menopause Workplace Pledge.
*While this article refers to menopausal women, the issues apply equally to individuals who do not identify as women but nevertheless experience menopause.
-  For example, Helen Tomlinson, Menopause Employment Champion, has noted that less than a quarter of UK businesses currently have a menopause policy: https://www.gov.uk/government/news/government-appoints-first-menopause-employment-champion-to-improve-workplace-support.
-  More information is available here: https://menopauseexperts.com/tribunals-triple-in-less-than-2-years/.
-  The Fawcett Society, Menopause and the Workplace (April 2022), 19 and 20.