MENOPAUSE AT WORK

MENOPAUSE AT WORK

In July 2022, the government announced a review of arrangements for dealing with the menopause at work.  This followed the publication of a report in November 21 making 10 recommendations for workplaces concerning the same subject. The debate has then erupted calling for special leave to be introduced for women going through the menopause and a new raft of protections.

The question then is whether protection already exists in law for women experiencing the menopause and if so, is further protection necessary, or indeed even a good thing?

Existing Protection

The fact is that for women experiencing severe symptoms, protection already exists.  It may not be widely utilised (at least in my experience), but I suspect that some of the reason for that is that few employers, and indeed employees, discuss the issue of workplace protection during menopause.  The very fact that this comment is being written shows that it is changing. It is, as they say, axiomatic.

According to the ACAS web site (www.acas.org) there are 4 categories of protected characteristic that already provide protection, or may do so, under the Equality Act. These are:

1. Age
2. Disability
3. Sex, and
4. Gender reassignment.

Age as a characteristic may play a part in protecting an employee because on the whole (not exclusively) the menopause tends to impact upon women in a particular age range. This is between 45 and 55 (according to ACAS).

Disability as a protected characteristic, seems to me at least, to be the most obvious category under which protection may be gained.   I realise that there are those who may be offended by the idea that when menopausal they could be classified, or seen as disabled. However, those who feel that way are not required to seek protection under this category. Indeed only those who are genuinely suffering as a result of their menopause should be seeking such protection (surely) and to be offended at the characterisation is in itself to infer that being disabled is something to be ashamed about.

It is a fact that this protection will only apply if the symptoms are long term, or expected to last a year or more, but should this apply, then the advantage to the employee of using this category to seek protection is the duty to make reasonable adjustments, which one might assume is the perfect solution to most of the symptoms that I can think of.

Clearly sex as a protected characteristic is also an important way to find protection in the work place during menopause.  Again I recognise that menopause is not an exclusively female experience, but it can fairly be said that it is a predominantly female experience.  In the same way, you may recall that baldness has recently been identified as being predominantly male, and thus attracting protection from harassment.

Gender reassignment is, I confess, a little more opaque to me as a source of protection when experiencing the menopause.   I cannot for the life of me see the connection, so if you can, please feel free to explain it to me.

It seems therefore that protection already exists for someone experiencing severe symptoms of the menopause.   I use the word “severe” deliberately, as there have been some commentators who have suggested that this discussion is just another way to obtain rights for people who want an easy ride. I don’t believe that anyone is suggesting rights for someone experiencing the menopause regardless of their symptoms. What I believe is being discussed, is protection or rights for those experiencing symptoms which put them at some form of disadvantage. Whether that be fatigue or difficulty concentrating for example.

Would stand alone rights be a good thing?

As a male, who is over 55, and did not experience the menopause as far as I know, I think I can claim to have an objective opinion.

As an observer of employment relations legislation over the past few decades, I have slowly watched as functions of welfare have slowly been moved from the state to being the responsibility of employers.  Whether this has been statutory sick pay, or provision of workers pensions, the direction of travel has been consistent, regardless of which political party is in power. Now, what might have been considered unthinkable only 10 years ago is becoming a debate.  That is the employers support for women who are undergoing “the change”.

In the short term, I believe experience shows us that this will be disastrous for women’s employability. I know it’s a controversial thing to say, but it is my opinion that it is true. Over the years, I have lost count of the number of employers who have said to me that they wish to avoid employing a woman of child bearing age because of the risk of having them go off on maternity leave. Anyone who believes that this will not be repeated should women achieve what some are calling for, menopause leave, is mistaken.

However, what is also quite clear is that attitudes to women in the workplace are changing. While one still hears the odd comment, maternity rights are normality and almost universally accepted. It has taken years, and I dread to think how many hours in court, but it is happening. Therefore change is clearly possible but in the longer term. Not overnight.

Turning to the question of whether or not existing protection does the job, the answer is that it could do, with just a few tweaks. Allowing multiple discrimination claims by enactment of section 14 of the Equality Act will be a start.  See Menopause and the Workplace: How to enable fulfilling working lives: government response – GOV.UK (www.gov.uk)

Also, allow the debate to get going. The government and ACAS have suggested appointing a menopause ambassador in every workplace. This is not such a bad move even for the most sceptical employer. If one sees the debate as a good thing, then the advantage doesn’t need to be spelt out. If one sees the debate as less desirable, then that employer is probably more likely to find themselves in tribunal as the debate gets going in spite of them, and having appointed such an ambassador, the employer will have at least one thing to help their defence when challenged.

As a matter of opinion, to extend rights and protection to menopausal women regardless of symptoms could fairly be criticised for lowering the threshold at which employers have to take over the support of their employees. This in itself will lower the credibility by those not already in favour of extending rights, and make it more difficult for People Managers to get board buy in. However, by recognising the difficulties experienced by some and start to talk about ways to accommodate staff experiencing such difficulties is going to improve retention, make resource planning more effective and transparent and improve board buy in.

The protection is already there. Now it’s being talked about, it’s going to be relied on more, and it will be better for all if this is done in a measured and focussed way.