On 24 January 2023, the Government published their response to a report from the Women and Equalities Committee entitled Menopause and the workplace.
The Government’s response confirmed that whilst it would accept, or partly accept some of the recommendations made by the report, there were some that would be rejected. In particular the Government confirmed they do not intend to consult on making menopause a protected characteristic under the Equality Act 2010 (EA) and there will be no ‘menopause leave’ policy pilot.
Background to the report
In July 2022, the House of Commons Women and Equalities Committee published a report entitled ‘Menopause and the Workplace’ making several recommendations they felt should be implemented by the Government. This included a recommendation to launch a consultation on a change to the EA to add menopause as a new protected characteristic, and to include a duty to make reasonable adjustments for menopausal employees. In addition, they recommended that the existing s.14 of the EA which refers to combined discrimination (which is not in force) is implemented immediately so that sex and age can be referred to as dual characteristics to bring a discrimination claim in relation to the menopause.
The Committee also recommended trialling a ‘menopause leave’ policy with a large public sector employer and for model menopause policies to be produced.
What is the Government’s response?
In the Government’s response it has not accepted the recommendation of consulting on a proposal to add menopause to the existing list of protected characteristics in the EA. They have stated this is on the basis that the evidence does not support this being required, as menopausal employees can currently use the existing protected characteristics of age, sex and disability to bring discrimination claims. The Government has suggested that including menopause specifically could open up new forms of discrimination, including discrimination towards men suffering from long-term medical conditions.
The Government’s response also confirms that it does not intend to implement the recommendation of bringing s.14 of the EA into force to allow claims for combined discrimination. The explanation for this is that it does not consider the introduction of combined discrimination could be done in a piecemeal way, e.g. implementing dual characteristics of age and sex only as recommended, which it felt would be ‘cherry picking’ these only to suit menopausal women. To introduce this section as currently drafted would mean that all of the seven protected characteristics referred to in this section could be relied on for combined discrimination which in turn would create a further 20 dual protected characteristics in addition to age and sex. The Government is concerned that the commencement of s.14 of the EA would cause additional burden and responsibility for employers.
The Government does not agree to the recommendation of a pilot menopause leave policy noting that it is not necessary at present. Nor does it agree to the recommendation of a model policy as the Government considers there is existing guidance and resources for employers available through organisations such as Acas and CIPD. The Government also remarked that there is ‘no one-size-fits-all’ approach when it comes to policies of this type.
Notwithstanding the Government’s decision not to implement a number of the Committee’s recommendations, the response is in agreement that women suffering substantial and long-term menopausal effects should be protected from discrimination in the workplace.
In light of this, there are some recommendations that they have agreed to implement. This includes appointing a ministerial menopause employment champion in “due course” which the Government considers is vital in helping to collaborate with and encourage employers on menopause workplace issues and help create policies and guidance that employers can put in place to support and protect menopausal employees. The Government has also accepted the request for flexible working for those experiencing menopause from day one of employment, this has already been put into motion and you can read more about this in our blog: D-BRIEF – Employment & Pensions Blog: Flexible Working
What should employers take from this?
It is unsurprising that the Government has not accepted the recommendations to amend the EA as it was publicly stated in the summer of 2022 that there were no plans to make menopause a protected characteristic. Our interpretation of the Government response is that the refusal to amend the EA is less about the content of the suggested changes, and more about the Government’s caution to make amendments because doing so has the “potential for creating new areas of dispute over self-identity and concerns about hierarchies of rights.” For this reason the Government has confirmed it will work within the existing legal structure, as a wider reform of the EA is some years away.
In relation to the recommendations that will be accepted and the commitment to encourage employers to support and protect menopausal employees, employers will need to consider whether to implement policies and guidance for managers. Having such resources will encourage open conversations and in turn, enable employees to feel able to ask for support were this is needed.
If you need further advice on how to support menopausal employees in your workplace please speak to a member of the Employment Team.
