Menopause awareness continues to be a growing focus for employers in the UK. In light of World Menopause Day 2024, we wanted to provide a recap on the developments and updates that have been made in the space this year.

Recent statistics published by the NHS Confederation, Hertility and Riley, indicate that menopause is having a significant effect on employees in the workplace. Most strikingly, according to The Red Paper published by Hertility and Riley, of a group of 2,000 women surveyed between the ages of 40 and 60, approximately 67 per cent said that their symptoms have had a mostly negative impact on them at work. Additionally, Hertility and Riley estimate that one million women left the workforce in 2023 due to menopausal symptoms.

It is also clear that menopause can have a direct economic impact on employers. An NHS Confederation report published earlier this month estimated that unemployment due to menopause symptoms has a direct economic impact of approximately £1.5 billion per annum on the UK economy, with approximately 60,000 women in the UK not being in employment due to perimenopause or menopause.

These statistics demonstrate the impact that menopause may have on productivity loss and staff turnover, which explains the focus for many employers on ensuring that employees with menopause or who are experiencing menopausal symptoms feel supported in the workplace.

Recent cases

Notwithstanding the statistics set out above, menopause is not specifically included as a “protected characteristic” within the meaning of the Equality Act 2010, which prohibits discriminatory treatment on the basis of certain protected characteristics. The UK government has recently debated amending the law to include this specific reference, though decided not to do so, which resulted in concerns from some groups that menopausal employees would be inadequately protected by discrimination legislation. Nevertheless, recent cases before UK Employment Tribunals demonstrate that claimants may bring menopause-related claims against their employers and former employers by characterizing their menopausal symptoms as a disability for the purposes of the Equality Act 2010.

In Chan v. Stanstead Airport Limited, while the Tribunal held that the menopause is not in itself an “impairment,” it acknowledged that employees could experience a wide range of symptoms when going through perimenopause and menopause and the impact of these symptoms could potentially meet the threshold of being “disabled” under the Equality Act 2010 depending on the circumstances. In this case, the Tribunal found that Ms. Chan’s mental health had been adversely affected by menopause (as a result of related stress and anxiety) and also noted that her inability to work for several weeks at a time was an adverse effect of the symptoms of menopause on her ability to carry out normal day-to-day activities and at those times, the effect was more than minor or trivial.

This case highlights the number of different hurdles that claimants face when making menopause-related disability discrimination claims. In particular, while the Tribunal may (depending on the circumstances), consider that menopausal symptoms may be “impairments” for the purposes of determining whether a claimant is “disabled,” claimants who assert that menopause is in itself an “impairment” are unlikely to satisfy the statutory test for having a disability.

Johnson v. Bronzeshield Lifting Ltd, emphasizes the risk for employers in failing to consider menopausal symptoms raised in the context of a flexible working request (which, in this case, resulted in the employee successfully claiming disability discrimination) whilst acknowledging that concerns relating to the treatment of menopausal employees will not automatically lead to sex discrimination, noting that “menopause and sex are different and distinct grounds.”

DEI developments

There have also been a number of significant DEI developments in the UK this year that have a crossover with developments relating to menopause:

• The newly elected UK Labour Government published its hotly anticipated Employment Rights Bill earlier this month, which confirmed the Government’s intention that employers with 250 employees or more will be required to develop and publish “equality action plans” showing the steps that they are taking in relation to prescribed matters related to gender equality, including how they will support employees going through menopause and how they will address the gender pay gap. While the exact scope of this duty is not completely clear (given that the duty will be subject to consultation and regulations will need to be made to give effect to this obligation), it is nevertheless an indication of the Government’s recognition of the impact that menopause can have on employees in the workplace.

• The Financial Conduct Authority (FCA) has published a series of proposals for a new regulatory framework on diversity and inclusion. As part of this framework, the FCA is proposing that large firms (i.e., those with more than 250 employees) be required to collect certain demographic characteristics, inclusion metrics and targets at the Board, senior leadership, and broader employee levels, and report these to the FCA. When reporting inclusion metrics, the FCA has proposed that employees be required to respond to questions anonymously, including whether they have been subject to treatment that made them feel insulted or badly treated because of a protected characteristic and whether they feel that their manager cultivates an inclusive environment at work. Financial services firms will be keeping this area under review to consider how these metrics may be useful to develop DEI practices (which could include feedback from menopausal employees who may raise matters anonymously).

Practical takeaways

There are several practical steps that employers can take to foster an inclusive and supportive working environment for employees going through menopause and to mitigate against the risk of menopause-related claims:

• Provide training to employees and managers to raise general awareness about the impact of menopause in the workplace. Doing so will help normalize discussions about menopause in the workplace and will help those employees going through menopause feel supported. Additionally, training for managers can help managers be mindful that menopause may be something that they may need to consider when dealing with flexible working requests, sickness absences or performance procedures for employees going through menopause.

• Many employers have introduced a menopause policy to raise awareness of the support that can be provided to employees. While there is no legal obligation to do so, a policy may be useful for employers to set out how they intend to support their employees going through menopause and could also be a mechanism to encourage discussion on any additional support that employees feel they need, which may boost employee morale and staff retention.

• Join other employers in the UK by signing the Menopause Workplace Pledge and implement the positive actions set out in the pledge, which may be done with the support of charities or other organizations in this area.

• Until relatively recently, menopause remained a “taboo” topic and employers, alongside broader society, are now becoming more familiar with this area. We expect that changes in support and policy offerings for menopausal employees will continue to develop as knowledge in this area grows and dialogue with employees continues.