World Menopause Day was held on 18 October 2023. The purpose of the day was “to raise awareness of menopause and the support options available for improving health and well-being.”
It is estimated that 51% of the population will experience menopause, and pre-pandemic research undertaken by the Chartered Institute of Personnel and Development (CIPD) showed that women over 50 were the fastest-growing group in the workforce. These statistics highlight the continued importance of offering support and raising awareness of menopause in the workplace.
Menopause as a Protected Characteristic
The Equality Act 2010 lists nine “protected characteristics” on which discrimination claims can be based. Those characteristics are age, gender reassignment, marital status, pregnancy/maternity, disability, race, religion or belief, sex and sexual orientation.
In July 2022, the Women and Equalities Committee House of Commons published their committee report “Menopause and the Workplace.” In this report, it was recommended that menopause should be made a protected characteristic under the Equality Act 2010. Whilst there was public support for this proposal, the government confirmed in January 2023 that they would not be making menopause a protected characteristic given their concerns that to do so would have unintended consequences and might inadvertently create new forms of discrimination.
Following the government’s comments, menopause remains an unprotected characteristic, and this position seems unlikely to change in the immediate future. However, employees going through the menopause will continue to be afforded protection under the Equality Act 2010 under the protected characteristics of age, sex and disability.
Tribunal Claims
Many employers are working hard to provide an inclusive workplace and support staff going through menopause by offering menopause policies, providing education and training, and making practical adjustments within the workplace. However, despite the increased support offered by employers, there has been a year-on-year increase in the number of tribunal claims citing menopause.
In February 2022, a legal precedent was set following an appeal to the Employment Appeal Tribunal (EAT) in the case of Ms M Rooney v Leicester City Council: 2600242/2019 and 2600243/2019. The EAT ruled that the employment tribunal had wrongly decided that a woman suffering from menopausal symptoms was not disabled. This decision led to a further preliminary hearing at which it was found that menopause symptoms could amount to a disability for the purposes of the Equality Act 2010.
In this case, the claimant, Ms Rooney, resigned from her role as a children’s social worker with the respondent, Leicester City Council, in October 2018, having faced unfavourable treatment and inappropriate comments following absences related to her experiencing menopause and her disclosure to her employers of her menopause symptoms. Ms Rooney had set out in her claim form the physical and mental effects of her peri-menopausal and menopausal symptoms and the detrimental and negative impact this had on her life. The EAT advised that the tribunal had been wrong to focus on what Rooney was able to do rather than on what she was unable to do given the severity of her symptoms. At a further preliminary hearing on 2 February 2022, Judge Clark found that “at all material times the claimant was disabled within the meaning given by [Section 6] of the Equality Act 2010 by virtue of a combination of symptoms of the menopause associated with symptoms of stress and anxiety”. Given the range and individual impact of menopause symptoms, this is helpful guidance for employers to establish when menopause symptoms may amount to a disability.
There have been several preliminary hearings since 2019 regarding the claims made by Ms Rooney. On 2 October 2023, the Leicester Employment Tribunal began the full hearing regarding the claims of discrimination, harassment and victimisation brought against Leicester City Council. The case is expected to last 16 days, so a judgement on these claims is imminent and likely to be of note for employers regarding the issues arising from failures in dealing with menopause in the workplace.
Employers have been advised by Baroness Falkner, chairwoman of the Equality and Human Rights Commission (EHRC), who are supporting Ms Rooney in her claims against Leicester City Council, that the EHRC will soon be launching new guidance for employers “so they have the resources to ensure they are looking after their staff who are going through the menopause.” Further, the EHRC will be encouraging all employers to use the new guidance when it is launched.
Next Steps
It remains important that employers are aware of menopause as a workplace issue and understand their obligations both in respect of protections under the Equality Act 2010 and also in respect of risk assessments to ensure the health and safety of all their employees. The Advisory, Conciliation and Arbitration Service has provided helpful advice regarding matters to consider in a menopause risk assessment which includes temperature and ventilation of the workspace, material and fit of uniforms, whether toilet facilities are easily accessible and whether managers and supervisors have been trained on health and safety matters relating to the menopause.
Whilst we await the judgment in Ms M Rooney v Leicester City Council and any further guidance this may provide employers in dealing with menopause in the workplace, employers should consider the following actions:
- Implement a menopause policy and action plans for support;
- Provide menopause awareness training across all of the workforce for greater education and understanding;
- Consider any further actions required to create an open and inclusive working environment and clearly signpost any available support;
- Encourage staff experiencing menopausal symptoms to discuss the support they need; and
- Consider practical adjustments such as desk fans, availability of cold water, adjustment of thermostats and reallocating desks for access to windows or toilet facilities.