Should Menopause be a ‘protected characteristic’ under The Equality Act 2010?
You may have seen some debate in the news about whether Menopause should be considered a disability. In this article, we provide a summary of the guidance that started the recent debate, consider the pros and cons of this approach and look at the practical impact for employers.
EHRC Guidance
The Equality and Human Rights Commission (EHRC) produced new guidance in February 2024 and states that menopause could be classed as a disability under the Equality Act 2010 if the symptoms have a ‘long term and substantial impact on a woman’s day to day activities.’ The guidance confirms that a failure to make reasonable adjustments could leave employers open to challenges and claims. The guidance also reminds employers that women experiencing the menopause could be protected from discrimination on the grounds of age and/or sex.
The EHRC guidance refers to research carried out by the Chartered Institute of Personnel and Development (CIPD) which found that 67% of women in work between the ages of 40 and 60 who are experiencing menopausal symptoms found that they impacted negatively on their work, including:-
- Experiencing higher levels of stress (68%)
- Being less patient with their colleagues (49%)
- Being less able to concentrate (79%)
- Being less physically able to carry out work tasks (46%)
There are helpful videos within the EHRC guidance, setting out the obligations for employers and looking at how employers can make adjustments in the workplace.
It’s widely known that in extreme cases, some women may feel that they have no option but to leave employment when they are experiencing symptoms such as those set out above and research has found that employers may be losing 1 in 6 of the women due to their menopausal symptoms. In its submission to the Women and Equalities Select Committee, the CIPD suggests that women in the age range going through the menopause (usually between 45 and 55) are often at the height of their careers. If a proportion of those women feel that they have no option but to leave the workforce, the UK economy is potentially losing skilled and experienced women from the workforce, which in turn may impact the gender and pension pay gaps, and reduce the number of women in senior leadership positions.
So what’s changed?
In some ways the EHRC guidance is nothing new. It is already possible for the symptoms of the menopause to be considered as a disability via the disability discrimination definition within the Equality Act 2010. However, commentary around the idea that the Menopause could or should be treated as a disability is divided.
Some commentators welcome guidance for employers confirming their obligations around treating menopause symptoms as a possible disability. Others, however, argue that the menopause is a natural period of transition for women and shouldn’t therefore be regarded as a disability. The menopause has not, so far at least, been classified as a protected characteristic under the Equality Act in its own right, in the way that pregnancy and maternity has, meaning that women have to rely on the legislation on the protected characteristics of disability, sex or age as the route for challenging any potentially discriminatory behaviour. A report by the Women and Equalities Committee, in July 2022, argued that the menopause should be designated as a protected characteristic under the Equality Act 2010 in its own right, but this change has yet to take place. Some commentators have suggested that using the disability route to challenge any discrimination may be limiting progress in this area and is based on a model which suggests that women’s bodies are in some way abnormal.
What does this mean for employers?
We will need to watch this space to see if any formal legislative changes are made to the Equality Act in this area. We anticipate that any such changes are likely to be a long way off. However, there is no question that the subject of the Menopause has become much less of a workplace ‘taboo’ over recent years and for employers this debate serves as a useful reminder to take the following steps:-
- Policy – put in place or review policies around the menopause in the workplace to ensure that they are up to date and serve as living, breathing documents that employees know about and can easily locate
- Training – train line managers on managers on the menopause so that they are better equipped to support colleagues experiencing difficult symptoms
- Communications – be transparent with employees about the work being done within your organisation on the menopause; share resources, provide spaces for discussion and encourage open conversations to reduce stigma
