Menopause – increase in Employment Tribunal claims

Further to our article Considering menopause as a protected characteristic, the Department for Work and Pensions (DWP) has now published its response to the Menopause and the Workplace: How to enable fulfilling working lives independent report, originally published in November 2021.

The Equality Act 2010 lists 9 “protected characteristics” on which discrimination claims can be based. Those characteristics are age, gender reassignment, marital status, pregnancy/maternity, disability, race, religion or belief, sex, and sexual orientation.

The government has confirmed it will not be making changes to the Act to include menopause as a protected characteristic. It is believed that the inclusion of sex, age and disability as protected characteristics provides protection against unfair treatment of employees going through the menopause.

Increase in claims

Despite menopause not being a specified “protected characteristic”, a report by the Menopause Experts Group has also been released this year, finding that the number of tribunal cases which cite menopause increased by 44% in 2021. According to the report, of the 23 cases in 2021 which cited menopause:

• 16 cases were claims for disability discrimination;
• 14 cases included claims for unfair dismissal; and
• 10 cases included claims for sex discrimination.

We expect that, given the encouragement to talk more openly about menopause and the government’s direction to employers to provide more support (see our article here: The Government calls employers to provide more support for those experiencing the menopause), the number of claims citing menopause will increase again this year.

The increase in claims and references relating to menopause indicates that there is a very real and increasing risk of litigation for employers who fail to understand the impact that the menopause has on a large proportion of their workforce.

Therefore, even though menopause has not yet been added as a protected characteristic in the legislation, employers should be taking steps to ensure that they do not fall foul of the law.

The Menopause Experts Group has suggested that employers should offer their workforce training about symptoms, signs and side-effects of the menopause, and that the House of Commons Women and Equalities Committee should advocate for a requirement that all employers have a menopause policy or code of conduct to avoid risk of any menopause-related claims linked to sex, age and/or disability. We also encourage employers to consider taking these measures.

For further advice, please contact Ashfords’ Employment team.