Happy International Women’s Day 2024!

Today, the world praises women’s achievements and raises awareness about gender equality and women’s rights.

In honour of this important day, this blog will discuss the legal protection offered to those who suffer from menopause in the workplace. This blog will also consider the recent guidance published by the Equality and Human Rights Commission (EHRC).

What is Menopause and How Can It Affect People at Work?

According to the NHS, menopause is a biological process where periods stop. Generally, people start to experience symptoms of menopause between their mid-forties and mid-fifties. Menopause is often not short-term, and for some, symptoms can last for up to a decade. During this time, some experience symptoms such as hot flushes and brain fog. Furthermore, perimenopause is when the body prepares for menopause, meaning that even before it commences, it is possible to suffer from symptoms of menopause.

Often, these menopausal symptoms will be experienced during one’s working life. This could make completing day-to-day work more challenging. Indeed, some have argued that a lack of support for workers experiencing menopause could cause people to lose confidence, feel ill and feel forced to end their employment. Problematically, people often find it difficult to talk about menopause in the workplace. This raises the question as to what type of legal protection exists.

What is the Law Around Menopause?

Currently, there are no specific protections afforded to those experiencing menopausal symptoms at work. However, it has been suggested by some that the Equality Act 2010 (the ‘2010 Act’) may indirectly offer protection to those affected. Furthermore, the EHRC has recently published guidance on the legal framework around menopause for employers. To understand the extent of the protection offered, some context of the 2010 Act must be given.

The Equality Act 2010

The 2010 Act was created to protect people from discrimination, victimisation and harassment. The 2010 Act outlines nine ‘protected characteristics’ including age, disability, sex, and race. If an employer discriminates against people based on these characteristics, they may face legal proceedings under the 2010 Act.

Importantly, some have argued that menopausal symptoms may fall under the protected characteristics of ‘disability’ and/or ‘sex’.  The 2010 Act outlines that, a person has a disability if a physical or mental impairment has a ‘substantial and long-term adverse effect’ on that person’s daily life. Therefore, as outlined in Davies v Scottish Courts & Tribunals Service (2018), the 2010 Act may offer protection to those dismissed by their employer due to the effects of menopause on their work performance.

If the 2010 Act deems someone with menopause symptoms as having a ‘disability’, their employer will be under a legal obligation to make reasonable adjustments. The EHRC has recently issued guidance on what these adjustments may consist of. For example:

• Employers may consider creating safe places where those affected by menopause can go to rest and take a break when their symptoms become overwhelming.
• Adjustments may be made to shift patterns. This could mean allowing people to work from home where necessary.
• A menopause-aware work culture could be created by having conversations with staff. This could help employers gauge what support is needed.

These adjustments, in principle, could increase the available support for people in the workplace. Some expect that this increased support will enable employees to feel more comfortable, reduce the impact of menopause and produce a more productive workforce.

Furthermore, if someone with menopause symptoms does not qualify as having a ‘disability’, protection may still be offered under the characteristic of ‘sex’. For instance, if employers do not implement reasonable adjustments for those with menopause symptoms, then they could be specifically disadvantaged in the workplace. On this note, the EHRC suggest that disciplinary action due to menopause-related absence could constitute discrimination under the 2010 Act.

How Well Does the Equality Act 2010 Deal with Menopause?

Some have argued that the recent successful cases on menopause discrimination indicate that the 2010 Act offers sufficient protection. However, others argue that due to there being no standalone, protected characteristic of ‘menopause’, protection under the 2010 Act may be a difficult bar to reach. For instance, people must sufficiently prove that their menopause symptoms are severe enough to be caught under the definition of ‘disability’. Equally, some argue that linking menopausal symptoms under the characteristic of ‘sex’ may not protect transgender people.

Conclusion

In celebration of International Women’s Day, this blog has outlined what menopause is and how it affects people in the workplace. Equally, this blog has outlined some of the measures, recommended by the EHCR, that employers can take to support their employees in navigating this condition. It has also outlined that some argue that the Equality Act 2010 offers sufficient protection against discrimination. However, to give people further protection, others contend that ‘menopause’ should become a protected characteristic.

 

Written by Niamh Crossan LLB 2, Law Clinic Volunteer, to celebrate International Women’s Day 2024.

Edited by Alan Winnie LLB 3, Street Law Manager & Client Adviser.

Special thanks to Louisa Richardson LLB 2, Media Manager, and to all the volunteers across the Clinic who helped to create and research for this blog.