In our second Article, we explored how Employment Tribunals have been considering menopause-related claims and the options that are currently available to menopausal employees if they believe they have suffered unfair treatment because of, or arising out of, the menopause.
You may recall that in that Article, we remarked that the number of claims citing menopausal issues remains very low and that one reason for this may be that the current protections offered to menopausal employees are not sufficient. This potential insufficiency has not gone unnoticed and just like us, over the course of the last year or so, the Government has taken some time to talk about the menopause. This Article focusses on the steps that are being taken in Ministerial circles to address how the law currently protects menopausal employees at work and offers an insight into potential future reforms to account for the growing number of employees experiencing the menopause in the workforce.
Women and Equalities Committee
In July 2021, the Women and Equalities Committee (WEC) launched an enquiry into menopause in the workplace. The aim of the enquiry was to look at the extent of discrimination faced by menopausal employees in the workplace and examine how government policy and workplace practices can better support this demographic. Following written submissions and a number of oral evidence meetings, the WEC published its report, “Menopause and the workplace” in July 2022.
The WEC report made a number of important points, but potentially most significant to employers, a headline finding was that there is a “legal, economic, and social imperative to address the needs of menopausal employees”.
Whilst it was supportive of menopause policies generally, it didn’t think that employers should be mandated to implement them. It did, however, suggest various ways that employers should address the issue of the menopause in the workplace, including introducing practical adjustments and giving additional flexibility to menopausal people alongside fostering a culture which promoted greater respect for, and understanding of, the menopause.
In terms of legislative reform, the WEC report found that “the current law does not serve or protect menopausal women”. It therefore called for the government to immediately commence section 14 of the Equality Act which would allow dual discrimination claims. This would allow, for example, an employee to bring a claim on the basis of being an older woman. It also supported making the menopause a protected characteristic in its own right and called for the government to start a formal consultation on this aspect within six months of the report.
Whilst the WEC report calls into sharp focus, the steps that employers can take to support menopausal employees, its call for legislative reform now seems unlikely in light of a separate Government Response which was published around the same time as the publication of the WEC report (see below).
In July 2021, the Minister for Employment commissioned a report into menopause and the workplace asking members of the Roundtable on older workers to explore this issue.
The Report, titled Menopause and the Workplace: How to enable fulfilling working lives, was published in November 2021 and made 10 recommendations including two which are specifically aimed at employers.
The first of the employment-specific recommendations, encouraged the launch of a collaborative, government-backed employer-led campaign covering a range of topics related to the working lives of menopausal employees (including issues such sick leave policies, performance management and flexible working rights).
The second recommendation suggested that larger employers should put in place Employee Assistance Programmes (“EAPs”) which would offer workplace training. Under the same recommendation, SMEs that are unable to offer their own programmes would be encouraged to make use of the Menopause Employment Champions.
The Government published its Response to the Report in July 2022 which acknowledged that menopausal symptoms can, in some cases, be debilitating and have a significant impact of everyday activities. The Government then considered each of the Report’s 10 recommendations in turn. Their full Response can be read here and we’ve summarised some of the highlights below.
Highlights from the Government’s Response
- Menopause to remain a top priority across government and in society – to be furthered by the UK Menopause Taskforce;
- Professor Dame Lesley Regan appointed as the first Women’s Health Ambassador for England – focusing on raising the profile of women’s health and increasing awareness of taboo topics. Professor Regan will sit on the UK Menopause Taskforce.
- One or more Menopause Employment Champions to be appointed by the Minister for Employment.
- No changes to be made to the Equality Act – recent cases show that employees already have scope within the Equality Act 2010 to challenge discriminatory treatment by employers – claiming under one or more of the three relevant characteristics (being age, sex, and disability).
- Menopause to be looked at as a “cross-cutting” policy issue given the breadth of areas impacted by the menopause. It is a public policy issue and not just a health issue.
- The Menopause Taskforce to attempt to quantify the cost of menopause to individuals, businesses, health services and to wider society.
- The NHS England and Improvement’s Menopause Pathway Improvement Programme has been set up to improve clinical menopause care in England. Further, the Programme will also consider a public health campaign which could promote an understanding of symptoms, help to break down taboos and signpost where women should turn to if they are experiencing symptoms of the menopause.
In addressing the two recommendations of the Report which were aimed specifically at employers, the Response said that employers would be critical to the effectiveness of menopause communications in the workplace. It said that the Government was committed to increasing the reach of menopause communications and – through its Menopause Employment Champions – will provide links to advice, guidance and best practice case studies for employers to equip themselves with. Importantly, the Government’s narrative will focus on outlining the benefits that businesses can receive by recruiting and retraining people experiencing the menopause.
On the topic of EAPs, the Government encourages all employers to ensure that menopause support forms part of their EAP offering whilst recognising that some smaller businesses may require additional assistance.
The Government is currently exploring how they can support such businesses, including through the Health and Wellbeing Fund which is running a trial inviting voluntary, community and social enterprise providers to submit applications for funding later this year.
To demonstrate its own commitment to this cause, the Civil Service launched its own menopause policy earlier this year and the DWP, which is a member of the Cross-Government Menopause Executive Committee, already has in place its own Menopause Network, cafes, ambassadors and resource hub. We talk more about the importance of implementing such a policy in our final Article.
What does this mean?
The Government’s Response in July of this year, demonstrates very clearly that it is acutely aware of the issues faced by menopausal employees and that something needs to be done to address this to avoid valuable talent being drained from the workforce. Of course, only time will tell how effective the Menopause Employment Champions will be in communicating with and supporting businesses about this issue.
Possibly most significantly though, the Response confirmed that the Government does not currently intend to make any amendments to the Equality Act 2010, either in terms of enabling dual-discrimination claims to be brought or by making menopause a protected characteristic in its own right. For the time-being then, people that suffer an adverse consequence related to the menopause at work will need to continue to formulate their tribunal claims under the existing discrimination legislation.
Our final Article in this series, to be published next week, will look at practical steps that employers can put in place now, to support menopausal employees.