At the end of February 2024, the Equality and Human Rights Commission (EHRC) issued its latest publication, “Menopause in the Workplace: Guidance for Employers”.  Whilst hailed by some as bringing in new obligations for employers.  That is not the fact the case.  However, it introduces non-statutory guidance that acts as a timely reminder of the current laws and ways in which employers can support female employees throughout this often complex and challenging time.

Why does it matter?

Menopause and peri-menopause impact a significant chunk of the population at some point in their working life.  It is well worth employers taking steps to review relevant policies and consider how women experiencing peri-menopausal symptoms can be supported in the workplace.  Whilst the menopause can start at a much younger age, it often effects women between 40 and 60 years old; often those who are in senior and managerial roles.  As well as the obvious advantages of limiting the risk of expensive, time-consuming and stressful Tribunal litigation, having effective support systems in place can lead to reduced absences, higher employee morale and loyalty, and increased retention rates of a very valuable, experienced proportion of the workforce. 

What does the EHRC guidance say?

The EHRC guidance cites research by the CIPD and the Fawcett Society, noting the considerable impact that the menopause and peri-menopause can have on women in the workplace, including on their ability to concentrate, increased stress levels, alongside a whole host of other symptoms on both physical and mental health.  It provides an explanation of the current laws and some examples of steps employers can take to support women experiencing menopause and peri-menopause related symptoms.

What is the legal position?

There are no standalone protections for women going through the menopause.  In 2023 the Government specifically rejected calls for the Equality Act 2010 to be amended to bring in a new protected characteristic of menopause.  It stated that women can already rely on existing protections afforded on the grounds of disability, age and sex. 

Recent case law has confirmed that women may be able to bring claims under the existing laws.  As a reminder, women cannot be treated less favourably (direct discrimination), nor should they be subjected to harassment, victimisation or indirect discrimination on the grounds of these protected characteristics.

A woman may be disabled if she can demonstrate that the symptoms she is experiencing have a long term (having lasted or being expected to last 12 months or more), substantial impact on her ability to carry out normal day to day activities. Importantly, if menopausal symptoms meet this definition, which will frequently (but not always) be the case, the employer will be under a duty to make reasonable adjustments to limit any disadvantage any workplace requirements may have on them as a result of the condition. 

The EHRC guidance also reminds employers of their legal obligation to conduct health and safety risk assessments of workplace risks.

What are the recommendations?

The EHRC guidance explains that reasonable adjustments in this context may include reviewing temperatures and increased ventilation, relaxation of uniform policies , increased flexibility, dealing with menopause related absences in a different way to non-disability related absence, and working from home. 

These are likely to assist with some of the main symptoms of the menopause, such as hot flushes struggling to sleep, and brain fog, but it is important for employers to understand that the condition will affect many women differently.  There is no ‘one size fits all’ solution.  If a female employee is experiencing difficulties at work because of symptoms they believe to be related to the menopause, we recommend obtaining a medical report, perhaps through Occupational Health, for more detailed and personalised recommendations.  If in doubt, seek legal support.

In some areas there is unfortunately still embarrassment around the subject of menopause, and it can be somewhat of a taboo subject.  It is hoped that the EHRC guidance and other publicity can draw additional attention to the issue and make it easier for women to feel able to speak out about how the condition is impacting them, and easier for employers to feel prepared having conversations about this. 

One of the key recommendations of the EHRC guidance is for there to be open conversations with employees regarding the menopause.  Firstly, wider conversations about the issue to support teams and encourage women to be able to speak out.  Secondly, through confidential one-to-one conversations regarding individual impact and support that can be offered. 

Use of objective and non-derisory language is crucial both to set the tone and ensure that this is treated sensitively and in a supportive manner, but also to avoid the risk of any potential harassment claims.

Another recommendation is to have a menopause policy.  This needs to be kept up to date and importantly, managers should be trained on how to handle sensitive conversations and what support can be offered, and policies need to be well-communicated across the company.  An increase in menopause committees or champions are also being seen, particularly in larger businesses, again making it clear to staff that this is an important issue and that there is support available if they are struggling with symptoms at work. 

Please do get in touch with jjones@ortolan.com if you would like any further advice or support with introducing a Menopause Policy or Training in your workplace.