Pause for thought - Gillian Crew considers whether it is time to give menopausal women greater protection under equality law

There have long been calls for the list of protected characteristics under the Equality Act 2010 to be extended, such as to caste, care experience or caring responsibilities.  However, adding menopause seems to be gaining some traction.

Menopause and perimenopause affects women between the ages of approximately 45 through to 55. For some, it can cause severe and long-lasting symptoms ranging from low mood, anxiety, fatigue and poor concentration, to heavy periods and anaemia, hot flushes and sweating.

MPs have called for menopause to be added to the list of protected characteristics [1] under the Equality Act 2010 and to extend the duty of employers to make reasonable adjustments for menopausal employees.  The House of Commons Women and Equalities Committee report raised concerns that the UK was losing female talent because of the menopause.  In particular, it reported women who suffered from menopausal symptoms are 43% more likely to have left their jobs by the age of 55 than those who did not, and that approximately 900,000 women have given up their jobs because of menopausal symptoms.  Caroline Nokes MP said: “The omission of menopause as a protected characteristic under the Equality Act is no longer tenable, given that 51% of the population will experience menopause. Menopausal women have been mocked and maligned for too long. It is time that the government seizes the opportunity to enact change. It is time to support, and celebrate, these women.”

In recent years, successful claims arising out of the menopause have been brought under the existing protected characteristics of age, sex and disability.

Although the menopause is not a disability in itself, its symptoms may meet the statutory definition.  In Rooney v Leicester City Council [2]  the EAT held that an employment tribunal gave insufficient reasons and erred in striking out an employee’s claim that her menopausal symptoms amounted to a disability. In Merchant v BT Plc [3], a capability dismissal for poor performance of an employee who said her performance was affected by her menopausal symptoms was found to be an unfair dismissal and direct sex discrimination because the employer did not properly investigate the impact of the claimant’s symptoms on her performance.  In A v Bonmarche Ltd [4], A had worked for the employer for 37 years, when she was subject to numerous comments about her being menopausal by a younger line manager and was successful in her claims of sex and age discrimination.

Given that claims arising out menopause can already be made under the existing protected characteristics, other than de-stigmatising menopause and simplifying claims, is there anything to be gained from adding menopause to the list of protected characteristics?  But given how long other potential protected characteristics have been spoken about, it is likely to be some time before any answers to this question will be found.

[1] MPs call for menopause to be protected characteristic in UK Equality Act | Menopause | The Guardian
[2] [2022] IRLR 17
[3] [2012] 1 WLUK 683
[4] [2019] Case No: 4107766/2019 6th December 2019

Gillian Crew

Call 1998

29.07.2022