The Government has now published its long-awaited response to the report published in July 2022 by the Women and Equalities Committee (WEC), on menopause and the workplace.
The WEC report set out the findings of the enquiry it had launched into menopause in the workplace, in particular the extent of discrimination faced by menopausal employees in the workplace and how government policy and workplace practices could better support this demographic.
The WEC report made a number of important points, but potentially most significant to employers, a headline finding was that there is a “legal, economic, and social imperative to address the needs of menopausal employees”. It also made 12 specific recommendations – four of which were specifically targeted at workplace matters (the “Workplace recommendations”), and three which focussed on legal reform (the “Legal Reform recommendations”).
The Government’s response to the Workplace recommendations and the Legal Reform recommendations are summarised as follows:
Government’s response to the Workplace recommendations
- The Government will be appointing a menopause Employment Champion (MEP) who will report to and consult with DWP ministers. The MEP will work alongside the Women’s Health Ambassador on menopause at work issues. They will have specific remit to spearhead an employer-led campaign on the issue. More details of their role and responsibilities will be known once the appointment of the MEP is made.
- The Government is supportive of educating and informing employers about the menopause and how to support their staff and colleagues who may be experiencing this. However, the Government does not support the introduction of a model menopause policy. The reasoning for this seems to be that any policy should properly be tailored to the particular organisation and therefore having a “one size fits all” policy is not helpful.
- The Government will not be working with a large public sector employer to develop and pilot a specific menopause leave policy. The Government’s stated aim is to support menopausal staff to remain in the workplace and to ensure that employers have the necessary information and tools to support menopausal staff. It therefore considers that its efforts are best placed in supporting employers to implement menopause policies and related support which focus on helping retain people at work, rather than introducing a specific menopause leave policy.
- The Government accepts that flexible working should become a day-one right for employees. In fact, the Employment Relations (Flexible Working) Bill is currently already going through Parliament which – when it is enacted – will bring about this (and other) helpful changes to the existing flexible working regime.
Government’s response to the Legal Reform recommendations
- The Government is currently developing guidance that will provide employers with a set of “principles” which are designed to support disabled people in the workplace. Whilst this guidance will not be menopause specific, it is thought it may also apply where staff are experiencing the menopause. The new guidance will be published by the Health and Safety Executive in due course.
- The WEC report called for the Equality and Human Rights Commission (EHRC) to also publish guidance on the legal considerations when supporting employees experiencing the menopause. The Government is committed to sharing this recommendation with the EHRC, but notes that as an independent body, it will be for the EHRC to decide if it will publish more specific guidance or not.
- The Government will not be commencing section 14 of the Equality Act which would allow dual discrimination claims. This would have allowed, for example, an employee to bring a claim on the basis of being an older woman (in other words on the combined protected characteristics of sex and age). The Government notes that introduction of section 14 cannot be done in piecemeal fashion and if it was introduced in full, it would create a further 20 dual protected characteristics in addition to the dual protected characteristic of age and sex. The additional burden that this would place on employers and service providers, seems to be the predominant reason why this recommendation will not be implemented.
- Perhaps most significantly of all, the Government will not be launching a consultation into whether the Equality Act should be amended to introduce “menopause” as a new protected characteristic. Whilst the Government is committed to ensuring that menopausal staff do not face discrimination in the workplace, it is not satisfied that introducing menopause as a new protected characteristic, is needed to achieve this. In its view, the protected characteristics of sex, age and disability all offer legislative protection to staff that wish to challenge any unfair treatment linked to the menopause. The Government is also mindful of not introducing changes to the Equality Act which may inadvertently create new forms of discrimination for men suffering from long term medical conditions.
- Importantly, the Government does state in the closing comments of its response, that as alternatives to making the menopause a protected characteristic, that either; the reasonable adjustments provisions of the Equality Act could be expanded through a wider definition of disability; or the employment aspects of the age discrimination provisions could be expanded. As both of these matters would require a change to primary legislation, it is not anticipated that either will happen quickly, if at all.
Comment
It’s fair to say that the Government’s response is somewhat disappointing in terms of the lack of progress it makes towards ensuring employees that are facing issues connected to the menopause at work, can effectively challenge that treatment in the courts. The response has already received criticism both from the mainstream press and from the Chair of the WEC, Rt Hon Caroline Nokes MP, who described it as a “missed opportunity”. That said, it is not at all unexpected in light of the Government’s earlier response to a separate independent report published last year.
For the time being at least, the Government’s approach seems to focus on the education of employers, encouraging them to seek out and use existing resources such as the recent ACAS and CIPD guidance on the topic of the menopause. Whether or not this will be sufficient to keep menopausal employees in the workforce, remains to be seen.
On a positive note, employers now know that legislative reform in this area is not on the immediate horizon, and can therefore focus on making internal efforts within the parameters of the existing legal landscape.
With this in mind, we will continue to encourage employers to keep Talking About The Menopause.
For more information check out our guide to help employers navigate issues relating to the menopause at work.