EHRC publishes new guidance on menopause and the workplace

The Equality and Human Rights Commission has published new guidance on menopause and the workplace. It includes a reminder that menopause symptoms could amount to a disability - in which case, reasonable adjustments must be considered - as well as  suggesting ways to support workers and avoid claims of harassment and victimisation on the grounds of age and sex. The Commission cites evidence from CIPD’s Research ‘Menopause in the workplace’ published in October 2023 which suggested that 67% of working women between the ages of 40 and 60 who have experienced menopausal symptoms said the symptoms had a mostly negative impact on them at work.

This has been widely reported in the national press, and the HR press, and as Personnel Today highlights the focus of the guidance is on the need for reasonable adjustments where a worker’s symptoms amount to a disability. So, as the guidance makes clear, menopause symptoms can be considered a disability if they have a long-term and substantial impact on a woman’s ability to carry out normal daily activities. Suggestions for reasonable adjustments include allowing flexibility over an employee’s start or finish times, altering the working environment to make conditions more comfortable, or allowing working from home.

A reminder. Last year the government faced backlash after it rejected calls to make menopause a protected characteristic under the Equality Act 2010. In its response to the recommendations put forward by the Women and Equalities Committee in July 2022, the government explained that making menopause a tenth protected characteristic under the Equality Act 2010 would not protect employees experiencing discrimination related to their menopause symptoms. The government’s view then, and now, is that sex, age, and disability are all covered by the Equality Act and provide protection against unfair treatment of menopausal employees. They agreed with evidence from bodies including the CIPD and Business in the Community which suggested that further legislation would be a ‘blunt tool.’

The guidance also highlights how under health and safety legislation employers also have a legal obligation to conduct an assessment of workplace risks, which should take into account the risks to menopausal women. In the UK we have the Health and Safety at Work Act and two sets of regulations which impose particular duties on employers but there is no specific duty relating to menopause. That might help explain why so many employers are unaware of the health and safety angle and why so many women feel unsupported and choose another employer or leave the workplace entirely. 

So, let’s consider that. Zoe Betts is a health and safety law specialist who joined me by video-link to discuss the issue. First question, why is this an HR issue? 

Zoe Betts: “Well, that's a good question and I think a lot of people would ordinarily think that it sits wholly and solely in the realm of HR, but I wouldn't agree with that. I think this issue really straddles HR and H&S and it requires some joined up thinking from employers. Since 1974 in this country, we've had health and safety legislation which requires employers, in section 2(1), they have a legal duty to ensure, so far as reasonably practicable, the employee's health, safety and welfare while at work and that section goes even further. That section talks about providing working environments which are, so far as reasonably practicable, safe, without risks to health, and have adequate arrangements and facilities for welfare. So, my opinion, and this is what I would tell my clients, that extends to taking reasonable steps to make sure that you have an adequate working environment for women and trans men who are going through the menopause. I think where HR comes in is that really that's looking at the impact that these symptoms could have on somebody's work and their performance at work. So, there's a real nexus, there's a real link, between HR and H&S and it would be wrong, in my view, for those professionals not to talk together to come up with some real workable solutions.”

Joe Glavina: “Well, yes, can I ask you about those. So, what should employers be doing on a practical level? 

Zoe Betts; “Well, I think as health and safety lawyer I would say this, and it'll come as no surprise, but a lot of it comes down to risk assessment. That is a legal obligation on employers, and I think a gender-sensitive risk assessment would consider the specific needs of women in a particular workplace who are going through the menopause. I think it's important to remember that treating men and women as equal doesn't necessarily mean treating them the same. There are clear differences between men and women and menopause is one of them and that needs to be acknowledged and there are reasonable adjustments, and reasonable steps, that an employer could take in the workplace to create a much more supportive and adapted flexible environment. The sort of adjustments that I mean would be adequate ventilation and letting people sit in it open windows, having easy access to cold water, toilets and washing facilities, having adequate breaks and temporary cover in case somebody needs more breaks than normal, and a private place to rest in, access to fans and, of course, there are other genuine and clear health and safety issues. If someone complains of joint pain, you might need to do a manual handling risk assessment. If somebody says that eyes are particularly dry and affected by the menopause, you'd be looking to do a display screen equipment assessment. So, these are all things that should captured, in my view, in a relatively simple and straightforward risk assessment. You might also want to consider, because of the psychological impact of the menopause, a stress management risk assessment. I've talked about this before, employers should be aware of this because of the mental health side of things, but menopause plays in, and the HSE has management standards and a wealth of information that employers can look to, but what you have to avoid is an employee suffering detriment because they have to have adjustments to their work pattern or the tasks, their duties, or their performance targets. We've got to consider flexible and homeworking - the pandemic more than anything is proved that that will work. So why not if that would benefit someone who's suffering from debilitating menopause symptoms? We've got to consider looking at our sickness policies. We've got to consider providing information and instruction and training to employees, but also to managers. This is a legal obligation, but it's morally right, it makes perfect sense. Many employers pay a lot of money for occupational health providers and for confidential counselling helplines so use those to your advantage and promote those so that you've got an educated workforce and you've got employees who know where to turn when they need help. I've heard before, and I would advocate this to clients, that some organisations have set up ‘buddies’ and it doesn't necessarily matter whether that's a female or a male body, but I think in this context it probably makes sense to be female, but a champion or someone who's knowledgeable about the issue, receptive, supportive, and is just a port of call if an employee or, indeed, a manager is really struggling with this particular issue. That person can be the place to get some support and get some advice about how to deal with this. Overall, I think my main message is that we have to foster a culture of understanding and encouraging people to be open and to share these issues in a way where they aren't fearing humiliation or ridicule or criticism or disciplinary action. I think that's a bit shameful in this day and age and what we really need is to be encouraging employers to have a well drafted and accessible, readily understandable, policy on the menopause, or guidance documents that people can find and turn to if they need a bit of support in that respect.”

The Equality and Human Rights Commission’s guidance on Menopause in the Workplace was published on 22 February. We have included a link to it in the transcript of this programme.

LINKS
- Link to EHRC’s guidance on menopause in the workplace