Our chairman, Marie Macdonald, recently appeared on Scotland Tonight discussing the government’s response to recommendations on supporting employees with menopause in the workplace. In this blog, we discuss this in further detail.
The Women and Equalities Committee carried out a consultation and produced their report on ‘Menopause and the Workplace’. It made a number of recommendations, including:
- Appointing a “Menopause Ambassador” to work with stakeholders from business, unions and advisory groups, to have a role including encouraging awareness and disseminating information, and providing support on good practice and menopause guidance to employers;
- That the government should produce model menopause policies to assist employers;
- That the government should work with a large public sector employer to pilot a specific ‘menopause leave’ policy
- The government should commence s.14 of the Equality Act 2010 which allows claims for combined discrimination to allow sex and age as a dual protected characteristic;
- Launch consultation on how to amend the Equality Act 2010 to make menopause a protected characteristic, including a duty to provide reasonable adjustments for menopausal employees.
The government this week produced their response, which confirms:
- It will appoint a ‘menopause employment champion’ to work with employers on menopause workplace issues and to head an employer led, Government backed communications campaign on menopause in the workplace;
- It does not accept the recommendation to produce model policies, and refers to their being sufficient information and guidance available, such as from ACAS;
- They reject the commencement of s.14 on combined discrimination, on the basis that they cannot have cherry picking of sex and age as a dual characteristic in particular;
- It does not accept the recommendation to pilot menopause leave;
- It does not accept recommendation to consult on making a protected characteristic, saying it agrees it is important women who suffer substantial effects of menopause should be protected in the workplace, but is not satisfied that the evidence supports introducing a protected characteristic.
The rejection in relation to menopause leave and the new protected characteristic have proved the most controversial and been much talked about in the media. Here, we discuss these in more detail.
Menopause Leave
As noted, the Women & Equalities Committee recommended the government should work with a large public sector employer to pilot a specific ‘menopause leave’ policy – with the aim of reporting back and considering further roll out if successful.
The W&E Committee report is not particularly specific about what form that ‘menopause leave’ would take and appeared to be leaving it to the government to come up with the terms of a pilot if it has accepted that recommendation. The overall aim appears to be to minimise issues employees may have if they need leave as a result of menopause symptoms, so avoiding women being subject to performance reviews or disciplinary action if they are absent due to illness caused by menopause, or providing for a policy that allows additional paid leave beyond usual sickness absence policies for employees who may need it.
If the government had accepted this recommendation it would not necessarily have done anything immediately, but it might have started the ball rolling on a type of policy that might become more widespread if the pilot was successful.
The government rejected it as in its view there are other ways in which support is already being provided in the public sector, and because their focus is on supporting people to remain in work, to which they say having a leave policy might be counterproductive.
Flexible Working
Related to this, the government have accepted a recommendation to bring forward legislation making the right to make a flexible working request a ‘day one’ right. At the moment an employee has to have 26 weeks service before they can make such a request – under the planned proposal they could do so from the start of their employment.
There are also some further changes, including allowing two requests in a 12 month period instead of one, reducing the time for considering an application to two months instead of three and removing the requirement for the employee to set out how they think their request can be accommodated. There is a bill going through parliament which would make these changes. While this is not specific to menopause, this is a mechanism employees can use if they feel they need changes to their working arrangements.
Protected Characteristic
The Committee suggested making menopause a protected characteristic in itself, including a duty to make reasonable adjustments. If enacted, this would allow employees to claim that they have been discriminated against specifically because they are going through menopause or as a result of menopause symptoms. There would require to be more specifics set out as to how precisely this would work, which is likely why the recommendation was only at this stage to launch a consultation to consider how adding the protected characteristic might be done in practice.
At the moment it is possible for discrimination claims related to menopause to be brought under age, sex or disability discrimination provisions, but the circumstances of the case need to be such that it fits within one of those categories, which it may not necessarily. The duty to make reasonable adjustment would be similar to that which already exists for employees with disabilities, and require employers to consider changes to the workplace or working arrangements in order to remove disadvantages employees might be suffering as a result of menopause symptoms. To an extent this duty already applies if the symptoms experienced are substantial enough to meet the definition of disability, but a specific duty in relation to menopause would be wider and potentially cover more employees, and avoid them having to prove the meet the definition of disability if their employer fails to support them.
The government as a reason for rejecting this recommendation noted that sex, age and disability provisions already cover menopause so adding it as a specific characteristic is not necessary, and also that it would require to be part of more significant reform to the Equality Act.
They also point to the need to avoid unintended consequences, such as discrimination risks towards men suffering from long term medical conditions, or eroding existing protections. The government’s response does not give any particular examples of these concerns so it is not clear how they consider these issues would arise. It is possible they are considering that if there is, for example, an enhanced paid sick leave provision for women going through menopause, but not for other employees who have long term health conditions which might require sick leave, this could result in discrimination. However, this would apply to anyone not going through menopause – not just men. Employees with long term health conditions are very likely to be covered by the disability provisions of the Equality Act 2010, therefore it is unclear how the government considers men with long term health conditions as a particular group might be discriminated against.
Further, as noted above the recommendation of the W&E Committee was not to make menopause a protected characteristic immediately, but to launch a consultation as to how that could be done. Consultation would potentially have allowed for risks of unintended consequences to be identified, so it is not particularly clear why the government rejected this recommendation without considering doing such a consultation, but it certainly seems they are ruling out any reform of the Equality Act in the near future.
Given many of the recommendations were to carry out further consultation or run pilot schemes, this is potentially a missed opportunity for the government to consider support for menopausal employees. However, regardless of the government’s decisions in this regard, many companies have their own menopause policies or provision for support, and employers can choose to put in place their own schemes regardless of the government position.
