UK: EHRC Releases Menopause In The Workplace Guidance For Employers

Guidance is latest in line of efforts to raise awareness of the impact of the menopause at work.

Published on 22 February 2024, the Equality and Human Rights Commission (EHRC) guidance on menopause in the workplace aims to help inform employers of their legal obligations when supporting staff experiencing the menopause.

Broken down into easy to navigate sections, the guidance outlines what menopause and perimenopause is and how the symptoms associated with it can impact on staff in the work environment, including on concentration, stress levels and physical fitness. Starkly, the guidance also links to surveys showing that one in ten women of those surveyed left work due to the menopause.

Legal obligations

The guidance summarises the legal obligations employers owe to staff under the Equality Act 2010 (EQA), noting in particular the protected characteristics of disability, age and sex and the obligation on employers to make reasonable adjustments, and the risks these pose in relation to direct and indirect discrimination, harassment, and victimisation.

The guidance also includes videos explaining how staff experiencing menopause symptoms may be protected under the EQA, along with examples of adjustments to support workers. This includes practical considerations such as how employers should consider dealing with menopause-related absence differently to other absences and the discrimination and harassment risks associated with taking action (e.g. disciplinary) for menopause-related absence or otherwise commenting on it.

Staff engagement

The guidance makes considerable effort to encourage dialogue between employers and staff to include all workers and not just management. The guidance promotes this as a way to encourage an open culture where staff feel able to talk about their symptoms and where greater awareness of these issues can be raised through training and opportunities for workers to discuss their experiences as well as have access to resources signposting them to support.

Comment

This guidance from the EHRC is the latest in a series of reports and guidance. See our article Menopause: new guidance for employers for our coverage of 2019 ACAS guidance on the subject, as well as Is the menopause a disability under the Equality Act 2010? for coverage of case law on menopause and the EQA.

The guidance from the EHRC presents as a way of raising the profile of this issue with employers and informing them of how this interacts with the concepts of discrimination and harassment at work, without getting too much into the detail.

One notable aspect of the coverage of this guidance is the EHRC's characterisation of the menopause as a potential 'disability' under the EQA (note the guidance highlights the obligation to make reasonable adjustments which is an obligation an employer owes only in regard to the protected characteristic of a disability).

Perhaps for understandable reasons this has caused a degree unhappiness among some commentators who appear to baulk at the idea that the menopause – which is a natural occurrence for anyone who has periods – should be described as a 'disability'. However, strictly speaking under the EQA a 'disability' is any physical or mental impairment that has a substantial and long-term negative effect on someone's ability to do normal daily activities. The menopause is capable of fitting this definition and it is not excluded automatically by the Act as a condition that is capable of being a disability (like hayfever is, for example). It should also be noted that past guidance, such as that provided by ACAS as mentioned above, has already set out how the menopause may meet the definition of disability, albeit less prominently than the EHRC guidance has.

This criticism of the guidance should also be seen in the context of calls by the Parliamentary Women and Equalities Committee for the menopause to be classed as a protected characteristic in the EQA to afford menopausal women protection against discrimination. While the EHRC guidance makes employers aware of the potential protection under the EQA for those going through the menopause, it does not change or extend current legislative protections. That protection does not extend to everyone who can medically show they are menopausal, but does apply to those whose menopausal symptoms have a significant adverse impact on their day to day activities such that they meet the definition of 'disability' under the EQA.

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