Last year, shortly after the Women and Equalities Committee ("the Committee") published their report on Menopause and the Workplace ("the report"), we considered whether menopause would ever be a protected characteristic.  That had been a headline issue for some time but, a matter of weeks prior to publication of the report, the UK Government had confirmed that they had no intention of amending the Equality Act 2010 ("the Act") to introduce menopause as a protected characteristic.  Nor did they intend to implement section 14 of the Act which allows for claims of combined discrimination - age and sex being a possible combination for basing menopause related claims.

The added weight that the report brought to the calls for menopause to be made a protected characteristic meant many observers believed it was still a possibility.  However, the UK Government's response ("the response") to the report was published in January and that now seems unlikely, with the Committee's recommendation to launch a consultation on amending the Act being rejected.  The response confirms that the Government is not satisfied that the evidence brought before the Committee fully supports introducing menopause as a protected characteristic or commencing section 14 of the Act.  Perhaps somewhat controversially, it argues that introduction of menopause as a protected characteristic could create new forms of discrimination which could "erode existing protections for men".  No specific example of how that might happen is given.  The possibility of some legislative change is not ruled out - alternatives such as an expansion of the reasonable adjustments duty or age discrimination provisions are referred to - but could require a wider reform of the Act which would likely be some years away.

The report was not solely focussed on making menopause a protected characteristic.  Its remit was considerably wider with a number of other workplace related recommendations.  Other recommendations that the response rejects include the production of a model menopause policy to assist employers, and the UK Government working with a large public sector employer to develop and pilot a specific "menopause leave" policy.  Recommendations that were accepted include:-

• Appointing a "menopause employment champion" to drive forward work with employers on menopause related issues and spearhead a proposed employer led communications campaign.
• Bringing forward legislation to make the right to request flexible working a day-one right - this is something that is already progressing via the Employment Relations (Flexible Working) Bill.
• Applying strengthened guidance currently being developed to support disabled people and those with long term health conditions in the work environment to workers experiencing menopause symptoms.  This is to be published by the Health and Safety Executive.

This response repeats the position that the existing protections of age, disability and sex are adequate to protect women going through the menopause.  This is a position that many would not agree with, with only a small number of successful claims having been made using these protected characteristics.  However, employers need to bear in mind that women of menopausal age are reportedly the fastest growing demographic in the workplace.  Retention of these employees should be a focus for businesses irrespective of what legislation is or is not in place to protect them from discrimination.