Menopause, discrimination, and progress: A Workplace Revolution?
As Menopause Awareness month draws to a close, it’s a poignant moment to reflect on an issue that, despite its significant impact on countless women’s lives, remains unprotected by the law in the UK.
Recent developments have ignited discussions about making menopause a protected characteristic under the Equality Act 2010, but the government’s response has sparked concerns. In this comment piece, we look at the current legal landscape, scrutinise the government’s stance, explore real-life cases like Direct Line, and shine a light on what some employers, including retail giant Tesco, are doing to support their employees.
We also examine the findings from recent research and present a series of recommendations for companies to foster inclusivity and support for menopausal individuals, with a particular focus on the retail industry.
What the Law Says…
Despite the well-reasoned recommendations put forward by the Women and Equalities Committee, the UK Government’s decision in January 2023 to reject them left many advocates for change deeply disappointed. The committee’s report had proposed the inclusion of the menopause as a protected characteristic under the Equality Act 2010, along with the duty to provide reasonable adjustments for menopausal employees. However, the government cited concerns about potential unintended consequences and a perceived lack of evidence to support designating the menopause as a protected characteristic.
As it stands, the Equality Act 2010 does not encompass the menopause as a protected characteristic. Nevertheless, it’s worth noting that discrimination linked to the menopause may be considered under certain circumstances, especially if it’s related to an existing protected characteristic, such as age. Employers have a legal obligation to ensure the health and safety of their employees, including those who may be experiencing menopausal symptoms, as stipulated by the Health and Safety at Work Act 1974.
It is worth noting though that although discrimination related to menopausal symptoms may be covered under existing protected characteristics, (such as sex, disability, or age), making menopause a distinct protected characteristic might not necessarily simplify the claims process or provide additional protection.
Irwin Mitchel together with partner Jenny Arrowsmith have a number of interesting ‘business insight’s around the legal perspective which you may find useful for additional reference.
Example: Direct Line ordered to pay menopausal employee £65,000 after failing to adjust its performance management processes
The case of Lynskey v Direct Line exemplifies the challenges faced by menopausal individuals. Ms. Lynskey, a tele-sales consultant, experienced a decline in performance due to menopausal symptoms and was eventually constructively dismissed. The tribunal ruled in her favour, finding that her employer had treated her unfavourably and failed to make reasonable adjustments for her menopausal symptoms. The company was ordered to pay her £64,645.00 in compensation.
Example: The Proactive approach from Tesco
Tesco, in collaboration with the retail trade union Usdaw, is actively supporting employees experiencing menopausal symptoms. They have introduced a policy that removes menopause-related sick leave from calculations, offering female employees more confidence in addressing their symptoms. The retailer created a working group comprising woman from various Tesco stores who worked together to create a working solution. The policy aims to support women in customer-facing roles, shift work, and nights, which is seen as a significant improvement for Tesco staff.
The Tesco example is interesting in this context because it demonstrates a proactive approach by a large employer to support employees experiencing symptoms. Tesco’s initiative highlights the importance of open discussions, employee collaboration, and understanding the unique challenges faced by menopausal individuals. It serves as a positive example for other employers, showcasing how addressing menopause-related issues can create a more inclusive and supportive workplace environment.
Creating a supportive environment for employees going through menopause is not only ethical but also beneficial for business, as it leads to a more engaged and productive workforce. To address menopause-related issues, employers should:
- Promote open and inclusive cultures that encourage discussions about menopause.
- Offer support frameworks, backed by policies and guidance, can help employees feel valued and understood.
- Train line managers to have open conversations about menopause.
- Provide flexible working options and reasonable adjustments when needed.
The British Standards Institute (BSI) has issued a new guide to help employers manage menopause and menstrual health issues for their staff. The guidance emphasises the importance of creating a workplace culture where discussions about menstrual health and menopause are encouraged. It also examines employers’ legal duties under the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999.
The recommendations include:
- Reviewing physical aspects of work: Employers should provide facilities and accommodations to help staff manage menopausal and menstrual symptoms effectively.
- Reviewing policy guidance and tractice: Employers need to ensure fair and consistent policies, cross-reference relevant guidelines, communicate these policies to all employees, and provide training for managers.
- Creating a supportive workplace culture: Employers should cultivate an inclusive workplace culture, appoint responsible individuals to support employees, and provide education and advocacy.
- Improving work design: Work design should consider employee well-being and offer flexible options.
- Understanding different experiences: Employers should acknowledge that experiences of menopause and menstruation differ among individuals and consider the impact of various characteristics while using gender-neutral language.
Organisations should treat menopause as an employment issue
While the legal landscape concerning menopause as a protected characteristic evolves, there are ongoing efforts to support menopausal employees. Companies like Tesco and initiatives such as the BSI Standard are setting examples for creating inclusive workplaces. The key lies in fostering open conversations, providing support and training, and understanding the diverse experiences of menopausal individuals.
By following these recommendations and offering reasonable accommodations, employers can ensure that those going through the menopause can continue their careers without undue challenges and discrimination. More insights including a quiz and policy templates are available through Irwin Mitchell here.
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