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The Equality and Human Rights Commission (EHRC) has published new guidance on menopause in the workplace to help employers understand their legal obligations relating to women who are going through the menopause as well as details on the support they should provide affected employees.
This includes advice on making reasonable adjustments for women who are experiencing the menopause so they can continue to contribute to work and encouraging positive conversations about this personal issue to help create a safe and supportive work environment.
Although the menopause is not a protected characteristic under the Equality Act 2010, disability is. Therefore, if a female employee’s menopause symptoms have a long term and significant impact on their ability to carry out normal day-to-day activities, these symptoms could be considered a disability, says the EHRC. As result, employers will have a legal responsibility to act to safeguard these employees.
Legal case
In October last year, the EHRC reported on its support for Maria Rooney, a social worker for Leicester City Council, who had taken periods of extended sickness absence after suffering from menopause symptoms, and anxiety and depression in 2017 and 2018.
Rooney’s employer subsequently issued her with a formal warning over her leave despite the social worker disclosing her menopause symptoms she was suffering. After resigning in October 2018, Rooney brought a claim against Leicester City Council at an Employment Tribunal.
At a preliminary hearing in February 2022, an Employment Appeal Tribunal ruled that Rooney’s ‘disability was by virtue of her symptoms of menopause combined with symptoms of stress and anxiety’.
The EHRC notes that this is the first Employment Appeal Tribunal decision that menopause symptoms can amount to a disability for the purposes of the Equality Act 2010, thereby setting a legal precedent.
However, it is not the only case to reference the menopause in cases of unfair dismissal or direct sex discrimination at employment tribunals. According to figures released by Menopause Experts in September 2021, there were five employment tribunals in the UK in 2018 that referenced the claimant’s menopause. This rose to six in 2019, 16 in 2020 and 10 in the first six months of 2021.
Under the Equality Act, employers have a legal obligation to make reasonable adjustments for an employee when their symptoms amount to a disability. The law also makes it clear that employers cannot directly or indirectly discriminate against an employee because of their disability or subject a woman to discrimination arising from her disability.
The EHRC’s guidance advises employers that women who experience menopause symptoms may also be protected from direct and indirect discrimination, as well as harassment and victimisation, on the grounds of age and sex.
In addition to these responsibilities, employers also have another legal responsibility under the Management of Health and Safety at Work Regulations 1999 to undertake an assessment of the individual’s workplace risks.
Average age range
As Sarah Davies, co-founder and director of Talking Menopause, explains in IOSH magazine’s ‘Menopause: More than just hot flushes’, the average age range for the menopause (when a woman’s periods stop due to lower hormone levels) is 45-55 years old. However, it can happen earlier or later.
To put this into perspective, Jane Hartman-Jemmett CFIOSH, pointed to 2021 data from the Trades Union Congress in her IOSH magazine article ‘Menopause in the workplace’, that shows women aged 45-54 make up 11% of all people in employment and 23% of all women in employment in the UK.
We need to support menopausal employees at work and enable them to be at their best. This benefits the individual and the organisation; it is a win-win
‘Add to this those women in perimenopause, which can start as early as the 30s, and we have a significant proportion of the UK workforce who cannot – and should not be ignored,’ she said.
As Jane notes, menopause and perimenopause (when a woman has menopausal symptoms, but her periods have not stopped due to low hormone levels) symptoms can be physical and psychological. They include everything from low mood, brain fog and anxiety to hot flushes, muscle aches, changes in the body shape and weight gain.
The EHRC’s guidance includes more detailed information on what these symptoms are so employers are better informed and can take measures to protect affected staff, including making reasonable adjustments.
One of the purposes of the new guidance is to raise awareness among employers of the negative experience that women with the menopause can have at work and the wider impact.
Women leaving work
The EHRC cites research by the Chartered Institute of Personnel and Development (CIPD) that surveyed more than 2,000 women, aged 40 to 60, who are currently employed in the UK and could be experiencing menopause transition. The CIPD’s report reveals that 67% of respondents said the menopausal symptoms have had a mostly negative impact on them at work.
When asked how the symptoms had affected them negatively in the workplace, 53% said they were able to think of a time when they were unable to go into work due to their symptoms. Two-thirds (67%) reported common symptoms such as mood disturbances, anxiety, memory loss, panic attacks, loss of confidence and reduced concentration.
In some cases, the symptoms can be so severe that women feel unable to continue and leave their employment. The EHRC cites further research by the Fawcett Society that reveals that one in 10 women surveyed who were employed during the menopause had left work due to menopause symptoms.
What’s more, eight in 10 noted that their employer hadn’t shared information, trained staff, or put in place a menopause absence policy.
‘As Britain’s equality watchdog, we are concerned both by how many women report being forced out of a role due to their menopause-related symptoms and how many don’t feel safe enough to request the workplace adjustments,’ says Baroness Kishwer Falkner, chairwoman of the EHRC.
‘An employer understanding their legal duties is the foundation of equality in the workplace. But it is clear that many may not fully understand their responsibility to protect their staff going through the menopause. Our new guidance sets out these legal obligations for employers and provides advice on how they can best support their staff.
‘We hope that this guidance helps ensure every woman going through the menopause is treated fairly and can work in a supportive and safe environment.’
Select committee recommendations
In July 2022 the cross-party Women and Equalities Committee published its Menopause and the workplace report, which put forward 12 recommendations that cover women’s health, menopause in the workplace and legal reform.
As the select committee’s reported noted: ‘Women of menopausal age are the fastest growing group in the workforce and are staying in work for longer than ever before. Yet these experienced and skilled role models often receive little support with menopause symptoms. As a result, some cut back their hours or responsibilities [while] others leave work altogether.’
According to the report, women also often struggle to obtain a diagnosis of perimenopause and menopause, with many complaining GPs are ill-equipped to treat the symptoms. Also, access to specialists, such as endocrinologists and gynaecologists, varies widely according to region.
The committee’s recommendations to help improve this situation included piloting a workplace menopause leave policy within a public sector employer in England and to consult on making the menopause a protected characteristic under the Equality Act 2010.
However, in January 2023, the government published its response, rejecting five of the committee’s recommendations, including the pilot and the move to make the menopause a protected characteristic.
Reflecting on the government’s decision to reject the recommendation for menopause leave as a legal right, Jane noted in her IOSH magazine article that the administration did recommend that employers review their sickness and performance policies to ensure they consider the impact that the menopause can have on some women as well as post-menopausal opportunities.
Since then, the British Standards Institution (BSI) has published its ‘Menstruation, menstrual health and menopause in the workplace – Guide’ (BS 30416) which includes practical workplace adjustments and activities that employers can make.
Last year it also published a white paper, Second Glass Ceiling, that highlights health-related concerns such as the menopause as one of the reasons why women are leaving the workplace earlier than men and not out of personal preference. Its publication noted that women globally wanted to see improved support for menopause, which could help them stay at work.
Waiting until there is a pre-menopausal crisis is like acting once the horse has bolted the stable
Chloe Kirkbride, global wellbeing lead at Rolls-Royce, told IOSH magazine: ‘I am delighted to see the increase in guidance and support for menopause in the workplace. The EHRC and BSI guidance are essential in raising awareness of reproductive health at work and empowering those experiencing menopause to access support.
‘However, true progress lies not in the existence of the guidance, but in its implementation. Organisations must actively foster working environments where menopausal employees feel psychologically safe to have discussions about their menopause experience and how their workplace can support them. We want to see menopausal employees thriving in our workplaces, but to enable that we have to empower employees and people leaders to be comfortable in their conversations. Organisations need to proactively communicate on their approaches and reasonable adjustments to supporting menopause at work.
‘Unfortunately, stigma and misconceptions about menopause persist, which can ultimately exacerbate the discomfort and negative experiences some individuals face. The key message is that we need to support menopausal employees at work and enable them to be at their best. This benefits the individual and the organisation; it is a win-win.’
Dr Karen Michell, an occupational health specialist at IOSH, added: ‘Menopause can and often does have physical, mental and emotional effects on employees and their ability to cope with work. Yet very few workplaces and managers are knowledgeable on how to address work-related menopause issues and the preventive role that occupational health and safety can play.
‘This is concerning. As with other health issues, employees should feel comfortable being able to discuss their symptoms with line managers and other colleagues and be able to request additional support which helps them in their roles.
‘It is important that we prepare both workers and employers for what menopause might mean for them. Waiting until there is a pre-menopausal crisis is like acting once the horse has bolted the stable. Initiatives are needed to ensure we all understand the process of menopause and that employers create those supportive environments from the get go.’
Legal insights
Danielle Kingdon, Partner, Osborne Clarke LLP, says:
‘Women of menopausal and perimenopausal age are a fast-growing segment of the UK workforce and the rise in menopause-related discrimination claims in the Employment Tribunal highlights the importance of employers understanding and acting on their obligations to support these employees.
‘The guidance recently issued by the EHRC highlights the legal protections provided to women under health and safety legislation and the Equality Act 2010 and it is essential that managers are aware of how menopausal symptoms may be a “hidden” factor in performance, conduct and sickness absence issues.
‘Failure to recognise the impact of menopausal symptoms on an employee’s work can raise significant legal liability for discrimination (on the grounds of sex, age or disability) as well as lead to harassment or constructive dismissal and unfair dismissal claims.
‘Managers should be able to direct affected employees to company and external support and be able to deal with issues sensitively and appropriately. Where an employee experiences symptoms which amount to a disability under the Equality Act, employers must consider the duty to make reasonable adjustments to support the employee and ensure there is no less favourable treatment arising from their disability, such as giving an employee suffering from poor concentration a lower score in a performance review or issuing an employee with a warning under a capability policy due to absence related to menopausal symptoms.
‘Now is time to review related workplace policies and put appropriate training in place as we anticipate an ongoing increase in menopause-related claims in the Employment Tribunal.’
Emma Morgan, Partner, Shoosmiths LLP, says:
‘The new EHRC guidance on menopause in the workplace provides useful clarification and awareness of protections that already exist under the current law, but falls short of a change to the law itself. With little prospect of “menopause” itself becoming a protected characteristic in its own right, the guidance is a move in the right direction, but ultimately relies on increased awareness of the effects of menopause and a shift in attitude of both employees and employers.
‘It is hoped that the guidance will be enough to turn the tide so that those who are experiencing menopausal symptoms and those supporting individuals going through menopause or perimenopause feel able to discuss symptoms or request adjustments with their managers and can talk openly about their experiences and communicate their needs to employers. From the employers’ side, it will help organisations to understand how they can support their employees in terms of practical and often small and inexpensive adjustments, promote awareness and training, and ultimately improve employee retention and diversity, equity, and inclusion.’
