Lawyers back new menopause discrimination legislation

Do we need new legislation to protect women going through the menopause from discrimination? The Women and Equalities Committee heard from three lawyers this week who argued that menopause discrimination legislation would provide clarity for employers and help women who are affected and currently have to use disability or sex/age discrimination laws to fight for their rights.

Marian Bloodworth, chair of the Employment Lawyers Association [ELA], said that currently employers are bound by their duty of care obligations and by statutory health and safety duties, none of which explicitly mention the menopause. This compares with provisions for pregnant and breastfeeding women where, for example, there is a duty to do a risk assessment. Bloodworth added that the ELA is not aware of any enforcement actions linked to the menopause.

Adam Pavey, director of employment and HR at Pannone Corporate, said currently employees can take out discrimination cases under age and sex characteristics. Indeed a case was heard this week where a judge ruled a woman was unfairly dismissed from her job on sex and age grounds after her male employer said “she must be on her menopause”. Leigh Best, 54, was dismissed as a sales assistant for pet food retailer Embark on Raw in Essex for raising Covid-19 safety concerns, an employment tribunal found.

Pavey said taking such action can be difficult to do, given that the menopause can start fairly early and it is hard to find a viable comparator for sex discrimination cases as men – unless they are trans –  don’t generally go through anything similar to the menopause. Another route is disability legislation which calls on employers to make reasonable adjustments to cater for a disability. However, Pavey said there is a problem with describing a natural process as a disability. “It seems the wrong word to use and it creates a barrier for some individuals,” he said.

Colin Davidson, co-chair of the Discrimination Law Association, said women were being channelled to go down the route of disability and impairment, which have a higher bar to clear and which make it less likely that their case will come to court. He said this was due to the law being written by men for men.

Bloodworth added that legal challenges help provide greater clarity for employers, but the problem is that there have been so few – just 44 tribunal cases related to the menopause out of 79,000 cases between 2017 and 2021. She said this could be due to a lack of awareness of the legislation, difficulties in bringing claims and risks to employees of ‘rocking the boat, but it is likely to be an underrepresentation of the problem as surveys show significant numbers of women are reducing their hours or leaving their jobs due to the menopause. Davidson added that there needs to be more education and less social stigma about the menopause and men need to become more informed about it too.

Setting the tone

Bloodworth said that pregnancy discrimination legislation set a precedent for similar legislation when it comes to the menopause. Davidson added that the Government can set the tone and show that the menopause should be taken seriously by employers.  “By creating legislation the Government can signpost this is something that should be considered seriously,” he stated. Legislation would be accompanied by statutory codes so employers understand their responsibilities, he added.

Pavey said that legislation would also address some myths about the menopause at work and show that employers may only need to make simple adjustments to accommodate the menopause. All three lawyers agreed that, on balance, having legislation would provide clarity for employers and raise awareness about the menopause and would outweigh any concerns about a rise in claims and potential abuse.

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