New menopause in the workplace guidance: what does this mean for employers?

What matters

What matters next

On 22 February 2024, The Equality and Human Rights Commission published their first guidance on menopause in the workplace (the Guidance). This is a welcomed move in the right direction, but it remains to be seen how far this will change things in practice.

What is menopause?

According to the NHS, menopause occurs when periods have stopped for over 12 months due to lower hormone levels and is most common in women (and some people who do not identify as women such as trans men) aged between 45 and 55; however, it can happen much earlier or later than this. Many individuals also experience perimenopause where they have menopausal symptoms, but their periods have not yet stopped. Menopausal symptoms can last for up to 20 years.

Menopausal symptoms can include a range of physical and psychological symptoms such as irregular and painful periods, muscle aches and joint pain, difficulty sleeping, headaches, anxiety, low self-esteem and problems with concentration as well as hot flushes. Naturally, this can have a significant impact on a person’s life, including their work. 

In research by the Chartered Institute of Personnel and Development, 67% of working women between the ages of 40 and 60 experiencing menopausal symptoms said that they have had a mostly negative effect on them at work and 53% were able to think of a time when they were unable to go into work due to their symptoms (Research published in 2023).

Clarification provided by the new Guidance

The Equality Act 2010 (the Act) already protects workers from discrimination, harassment and victimisation based on protected characteristics including age, sex and disability. 

The Equality and Human Rights Commission have now provided useful guidance that where menopausal symptoms have a long-term and substantial impact on a worker’s ability to carry out day to day activities, this could be considered a disability under the Act. Where this is the case, employers are under a legal obligation to make reasonable adjustments for their disabled workers. 

Practically, this means that employers could be susceptible to claims in the following situations:

  • A failure to accommodate those experiencing menopausal symptoms in the workplace could amount to disability discrimination.
  • Workplace policies that create disadvantage for those experiencing menopause could be considered indirect age, sex or disability discrimination.
  • Taking disciplinary action because of menopausal absence could also amount to discrimination unless it can be justified.
  • Use of language in the workplace that ridicules workers experiencing menopausal symptoms could constitute harassment relating to age, sex or disability. 

To avoid this, employers should conduct robust risk-assessments of their workplaces. 

Reasonable adjustments could include:

  • Promoting flexibility, such as allowing staff to work from home or vary their start and finish times.
  • Recording menopause related absences separately from other absences.
  • Relaxing or adapting uniform requirements.
  • Providing quiet rooms where staff can take breaks.
  • Consideration of room temperature and ventilation in the workplace or providing fans.

Most of these are neither difficult nor costly and promoting a menopause-friendly workplace could also have the added effect of attracting and retaining talent. 

How far are things likely to change in practice? 

Some may be critical that the new guidance falls short of a change to the law; however, with little prospect of menopause becoming a protected characteristic in its own right, it seems that the guidance provides useful clarification and awareness of protections that already exist under the current law. 

The Guidance has the capability to turn the tide so that those who are experiencing menopausal symptoms and those supporting individuals going through menopause or perimenopause:  

  • can recognise the law offers protection;
  • feel able to discuss symptoms or request adjustments;
  • can talk openly about their experiences and communicate their needs; and,
  • understand where employers are more likely to be held accountable for discrimination relating to the menopause. 

The Guidance is certainly a move in the right direction; however, it remains to be seen whether it will have its intended effect in practice as this relies on increased awareness of the effects of menopause and a shift in attitude of both employees and employers. 

 

Resources

Menopause in the workplace: Guidance for employers | EHRC
Menopause in the workplace | CIPD

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024.

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