Menopause in the workplace: What does the EHRC's new guidance mean for employers?

The UK's Equality and Human Rights Commission has sought to clarify employers' responsibilities regarding women suffering from debilitating menopausal symptoms.

On 22 February 2024, the UK's Equality and Human Rights Commission published new guidance on menopause in the workplace: Menopause in the workplace: Guidance for employers | EHRC (equalityhumanrights.com)

The guidance follows what was widely seen as a missed opportunity, in the government's July 2022 response to the independent report it commissioned on ‘menopause and employment’, where it declined to enhance the legal protections afforded to women experiencing menopausal symptoms at work.

Since then, menopause in the workplace has continued to be a 'hot topic', with many larger employers introducing policies, champions, support networks and resources. However, confusion remains among both employers and employees regarding relevant law.

Clarity over legal protection

The EHRC's new guidance provides welcome clarification of a potentially confusing legal framework that does not directly or explicitly address menopause protection.

From a legal perspective, the guidance does not change anything; rather, it clearly explains existing legal protections available for individuals experiencing menopausal symptoms.

It summarises the applicable legal protections outlined in the Equality Act 2010 with respect to sufferers of menopausal symptoms, which have been the subject of a flurry of recent case law.

The guidance also emphasises that if menopausal symptoms are severe and have a long-term substantial adverse impact on an employee's ability to carry out normal day-to-day activities, they may qualify for protection from disability discrimination, triggering the legal duty for employers to make reasonable adjustments.

Menopause as a 'disability'

It is crucial to note that menopause itself does not automatically qualify as a disability under the Equality Act 2010.

The new guidance makes clear that whether or not an individual benefits from legal protection on the grounds of disability will depend on the severity of the symptoms, which will be evaluated on a case-by-case basis, depending on the medical evidence available.

The advent of new guidance in addition to growing awareness of menopause as a health and, increasingly, a legal issue may mean employers find it increasingly challenging to argue they did not have actual or constructive knowledge of a potential disability, where an individual is visibly experiencing menopausal symptoms.

Its therefore essential for employers to address such situations proactively.

The new guidance provides practical advice for holding open conversations and offering workplace support and reasonable adjustments, which, if adhered to, can potentially mitigate the risk of facing a disability discrimination complaint or claim.

Potential problems

Some argue that clarifying legal protections may inadvertently lead to age discrimination in hiring practices, effectively making employers reluctant to employ women of a certain age.

There are also questions around whether claiming 'disability' will be regarded as too extreme for some women, who are suffering severe menopausal symptoms but do not want to be categorised in this way.

The case-by-case evaluation of the severity of menopausal issues is also a possible stumbling block, especially if it relies on an already overburdened NHS to make determinations on what can be very sensitive health matters.

However, in the current employment climate, where some professions and roles are facing acute shortages of personnel and skills, employers may see this guidance as an opportunity to support and retain valuable staff.

Perhaps a more sustainable solution for employers is to take the guidance into account when designing workplace environments, to ensure a comfortable, inclusive environment for everybody.

This article was authored by Moira Campbell, Employment Law Director at Fieldfisher.