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Is it time for a stand-alone legal right for menopause protection?
07/10/2021
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Female worker
Authors
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Anne Mannix
Anne Mannix is an employment partner at Spencer West

Currently, there is no specific legal protection in the UK for people who have received adverse treatment at work because of their menopause symptoms. Is it time to increase legal protections to force employers to take this issue more seriously?

Older women (45- to 64-years old) are the fastest-growing economically active group in the UK. Of the 70% of employed women in the UK, almost 4.5 million falls into this age bracket but there is still a significant gap between the employment rate of women compared with men.

Recent celebrity publicity has increased awareness of menopause in the workplace and an ongoing government enquiry into menopause discrimination in the workplace (which could bring about changing the law to provide better protection) makes this a good time to review the situation.

A life change that is experienced by all women (and some transgender and non-binary or intersex people), the menopausal stereotype is not flattering and the jokes, ridicule, teasing, and mocking can be belittling at a time when people experiencing symptoms are vulnerable. Such comments can also amount to harassment. The shift in the last couple of years which has brought about more awareness of some forms of discrimination has not yet reached this often “taboo” subject that can affect a person’s wellbeing, progression at work, and productivity.

The problem with UK law

There are employers who have responded to performance issues involving a menopausal person by starting performance management procedures, which can end in dismissal for (lack of) capability or dismissal for misconduct. Those who don’t receive any support from their employer and who challenge adverse treatment can end up being dismissed anyway, or be subjected to some other detriment at work, such as a demotion.

In the UK, legal protection for ordinary unfair dismissal exists for employees with two or more years of service. The employer must have a fair reason to dismiss and follow a fair procedure for a dismissal to be fair. If there is a finding of unfair dismissal, any compensation awarded is capped. Employment tribunals can order the employer to reinstate or re-engage, but such orders are made in less than 1% of all unfair dismissal cases.

Often, a menopausal person will not mention the problems they are experiencing for the employer to take that information into account before implementing performance management or dismissal process; this can be because of embarrassment or because they are overwhelmed by the situation.

Legal protection for adverse treatment because of menopause, such as teasing, harassment or failing to provide training or promotion, would require a claim to be made to an employment tribunal within the confines of existing discrimination legislation. Claims for dismissal because of menopause should be brought as both discrimination and also (in cases where the employee has at least two years’ service) unfair dismissal.

Specifically, the claim must be for sex, age, or disability discrimination under the Equality Act 2010. No minimum period of service is required and there is no cap on the level of award a tribunal can make to a person who is successful in a claim for discrimination. A tribunal will not, however, award compensation for the same loss twice (and there would be overlap between the discrimination and unfair dismissal claims in the same case). Usually, it is more favourable for the successful claimant to be awarded compensation under discrimination legislation. Unhelpfully, the remedy of a reinstatement/re-engagement order is only available for unfair dismissal.

Most menopause cases are currently framed as direct disability discrimination where the test is whether the treatment was “unfavourable”. As a matter of policy, it seems demeaning to have to claim “disability” for something that is a normal part of life, but also, to qualify as a disability, the effects of symptoms have to last at least 12 months (long-term) and have a substantial adverse effect on normal day-to day activities.

Claiming adverse treatment because of menopause as sex/gender or age discrimination is problematic. For direct sex or age discrimination claims the test is whether the treatment was “less favourable” – ie, the claimant has to cite a suitable comparator (real or hypothetical), whose circumstances should not be “materially different” but who was treated more favourably, or would have been.

It is easy to see why employees could have little confidence or trust in the current legal protections when advice from employment law specialists will include the difficulty of identifying the legal claim, the confusing situation as to what remedy, and the risks of failure. Add to that the costs of legal advice for pursuing the claim, where normally each party bears its own costs. Discrimination claims can be technically complex at the best of times, so it is no wonder there are so few actual claims, despite the large numbers of people affected by adverse conduct in the workplace because of menopause.

The case for a stand-alone legal right

Is a legal protection that is so complicated of much use to those who need to rely on it? The process could be simplified by a government policy decision to create a new protected characteristic: “menopause discrimination”.

It took a few years (in the 1990s) for the law to recognise that discrimination arising from pregnancy is sex discrimination (Webb v Emo Air Cargo). That concept is enshrined in the Equality Act 2010 where protection for pregnancy or maternity discrimination exists as a stand-alone right.

So why not protect adverse treatment arising from or because of menopause with a stand-alone right? Such a right could also extend to requiring employers to make reasonable adjustments to support people experiencing menopause.

This could be a more positive approach, geared to incentivising employers to look for solutions that keep people in their jobs, rather than merely providing menopausal people redress in the form of compensation through a tribunal claim after it has all gone wrong.