Equality Act recognises there is no comparable situation to pregnancy discrimination…so why is menopause treated differently?

• International law firm RPC says there is 'innate inconsistency' in saying law already protects against menopause discrimination, while arguing proposed change would create new legal risks

Commenting on the rejection of the proposed "protected characteristic" for menopause under the Equality Act this week, employment partner Kelly Thomson, said:

The rejection of the proposed "protected characteristic" for menopause under the Equality Act this week was never about discriminating against men - it was about clarifying the existing law to work more effectively.

We even have precedent for this. The Equality Act specifically protects against pregnancy discrimination, recognising that there is no comparable situation.

What is not clear is why the government regards menopause differently.

Given the huge numbers of people reporting negative experiences at work linked to the menopause, it's critical that employers and employees have clarity over legal rights and responsibilities.

In its response to calls for menopause-specific legal protection, the Government's position is that this clarity already exists, saying: "Sex, age, and disability are all protected characteristics in the Equality Act 2010 which provide protection against unfair treatment of employees going through menopause".

Unfortunately, the law is not that simple.

We need to remember the rationale behind the Women and Equalities Committee's recommendation to make menopause a protected characteristic under the Equality Act 2010.

Yes, it is correct that there are protections in place for those who have been discriminated against because of their menopausal symptoms: age, sex and disability discrimination.

However, these aren't always fit for purpose.

To claim sex discrimination a woman would need to identify an appropriate male comparator in comparable circumstances, which is obviously problematic. 

Similarly, there are some women who experience peri-menopause or premature menopause at a younger age, say during their mid-30s, who would find it challenging to successfully claim age discrimination when mistreated.

Disability discrimination claims are notoriously complex and a person experiencing menopausal symptoms will not necessary meet the gateway requirements for protection, because those symptoms are often intermittent.  That then means there would be no obligation under the Equality Act on the employer to make even reasonable adjustments to support them. There are also some inherent concerns about describing menopause as a "disability".

The Government is also concerned that providing specific menopause protection would inadvertently create new forms of discrimination, such as "discrimination risks towards men suffering from long-term medical conditions".

But all genders – including men – suffering from long-term medical conditions are already protected to the extent that they are disabled for the purposes of the Equality Act.

What the rejected proposal was trying to address is that those experiencing menopause are not always protected, despite the widespread challenges presented at work.

There is also an innate inconsistency in saying, on the one hand, that the law already protects against menopause discrimination and, on the other hand, that adding protection against menopause discrimination would create new legal risks.   

We know that menopausal women are currently the fastest growing demographic in the workplace.

Regardless of this latest rejection to changing the law, there is much employers can do and are already doing.

The first step for employers is to understand the diverse realities of menopause and be proactive in considering what support can be provided to affected employees.

If you are not affected by menopausal symptoms, that is a privilege – meaning there are certain barriers you are not experiencing and your privilege is the very absence of these barriers.

Equitable workplaces are ones which recognise different lived experiences and take steps to remove or reduce unfair barriers so that all employees have the chance to perform at their best.

This benefits the whole organisation, including those not personally impacted.