Employment Eye – March 2026

Menopause as a protected characteristic?

Menopause is a natural biological process that typically affects women aged between 45 and 55, driven by gradual hormonal changes. However,  menopause is not exclusively a product of ageing; it can also be triggered by surgery, cancer treatment or genetic conditions. The experience of menopause varies considerably from person to person, but common symptoms include anxiety, mood swings, brain fog and hot flushes, and these symptoms can profoundly disrupt daily life. A recent study published in Psychological Medicine identified brain changes similar to those seen in Alzheimer’s disease, raising important questions about the long-term neurological impact of menopause. 

The workforce implications of menopause have never been more significant. Data from the Office for National Statistics revealed  that the employment rate for women aged 50 to 64 has increased from 46.9% in 1992 to 68.3% in 2025. With approximately 4.4 million women aged 50 to 64 in the UK workforce, it is estimated that around 900,000 of them  will be experiencing symptoms of menopause, severe enough to impact their work. 

The question of how employers, and the law, should respond to the challenges associated with menopause in the workplace has become extremely important.

The current legal framework

The growing significance of menopause is reflected in the statistics. The Menopause Expert Group found that Employment Tribunal cases citing menopause increased by 44% in 2021. In guidance published in 2024, the Equality and Human Rights Commission emphasised the need for employers to be aware of the risk of discrimination claims arising in connection with menopause symptoms and their impact on working life. 

Despite this growing significance, menopause is not directly protected under the Equality Act 2010. Instead, depending on the facts, an employee must rely on one of the existing protected characteristics to being a claim. A claim may be brought on the grounds of sex, disability, age or, where trans people experience menopause symptoms, gender reassignment. It is not uncommon for employees to bring more than one type of discrimination claim based on more than one protected characteristic.

Employment Tribunal response

In Mrs M Lynskey v Direct Line Insurance Services Ltd, the Claimant’s claims for discrimination arising from disability and failure to make reasonable adjustments succeeded where the employer did not provide enough to support with her menopause symptoms, which were negatively impacting her performance at work. Though the employer provided additional support and training, the Tribunal found that the Claimant should not have been formally performance managed, her targets should have been lowered, and the employer should have considered moving the employee to a different role. Furthermore, the decision to give the Claimant a performance rating of ‘requiring improvement’, a formal written warning and to cease paying sick pay constituted discrimination arising from disability. The Claimant was awarded compensation totalling £64,645, including £23,000 for injury to feelings.

In McMahon v Rothwell and Evans LLP, the Claimant’s claims for direct disability discrimination, discrimination arising from disability and failure to make reasonable adjustments failed. In this case, the Claimant was dismissed for timekeeping concerns, taking extended breaks and continued absences. The Tribunal accepted that the Claimant was dismissed because of something arising from her disability. However, the dismissal was a proportionate means of achieving a legitimate aim, given the Claimant’s absence levels that were very disruptive in the context of her role as a typist. The Tribunal also found that, although the employer had a ‘provision, criterion or practice’ (PCP) of requiring regular attendance, not all of the Claimant’s absences were disability related. The PCP was justified due to the nature of the Claimant’s role.

Meanwhile a Scottish case, A v Bonmarche Ltd (In Administration), highlighted how cultural attitudes towards menopause can lead to liability for an employer. In this case, the Claimant’s male manager demeaned and humiliated the Claimant in front of other staff due to her age and alleged poor performance due to menopause. The Claimant was successful in claiming sex and age-related harassment and the Tribunal ordered the employer to pay the Claimant compensation of £27,975.

Menopause as a protected characteristic 

As noted  above, menopause is not a protected characteristic under the Equality Act 2010. Nevertheless, there is growing pressure for legislative reform in this area. Below we have considered some of the principal arguments for and against introducing menopause as a standalone protected characteristic.

Pros

• Explicit legal protection would provide a clear and direct route for individuals wanting to challenge discriminatory treatment.
• It would also reduce the need for employees to bring multiple discrimination claims and reduce the risk of those claims failing on technical grounds. A standalone protected characteristic would provide clear guidance, making it easier for employers to understand their legal obligations. As a result of this, the current Tribunal backlog is likely to be reduced.
• Promotion of better practices within the workplace such as formal and high-quality menopause policies and training programmes. This is likely to reduce costly staff turnover and the loss of valuable knowledge.

Furthermore, employers who operate a clear legal framework are likely to benefit from an improved reputation as an inclusive and progressive employer. 

Cons

• Menopause discrimination is largely already covered under the existing protected characteristics of age, sex, disability and, in limited cases, gender reassignment, provided that the relevant characteristic is correctly identified and pleaded. Introducing menopause as a standalone protected characteristic would significantly expand the grounds upon which employees could bring discrimination claims against employers  and risks creating overlapping and duplicative claims, which could complicate legal proceedings and increase the overall burden on both employers and the employment tribunal system.
• Introducing menopause as a standalone protected characteristic would create evidential difficulties. Symptoms vary considerably between individuals, making the characteristic hard to define, and any claims brought would require complex and potentially costly medical evidence. Defining the precise scope is likely to be difficult, and there would be questions around whether it encompasses perimenopause and post-menopause and without clear guidance, employers may struggle to determine when their obligations are triggered.   

What is happening in Employment Rights Act 2025?

The government is introducing mandatory “Menopause Action Plans” for large scale employers, with a  focus on reporting obligations. From 6 April 2026, Menopause Action Plans will be introduced on a voluntary basis, with mandatory compliance taking effect in April 2027. These plans will cover practical measures that employers can adopt, including adjustments to dress codes and workplace temperature.

What should employers be doing? 

Set out below are some the steps that employers should consider taking in order to prepare for the Employment Rights Act 2025. 

• Reviewing policies and processes to ensure they adequately recognise the impact of menopause symptoms on employees. The policies should set out:
  
  • The reason for providing menopause-related training;
  • The organisations point of contact for related queries; and
  • The employer’s commitment to support a diverse workforce and prevent discrimination.
• Providing training to both management and employees so they are aware of the symptoms of menopause, how it can affect individuals and what support can be offered. Such training should cover: 
  
  • How the law relates to menopause in the workplace; 
  • The different stages of menopause, including peri-menopause; 
  • The potential impact of menopause symptoms on an employee’s ability to perform their role; and
  • The support available.
• Conducting risk assessments to identify environmental or role-related factors that may affect employees experiencing menopause such as: workplace temperature, ventilation and the suitability dress codes.

Employment law 2025 - 2026 – keeping you and your organisation up to date

There have been a number of notable developments since January’s edition of Employment Eye - below is a short recap on some of those developments.

8 January 2026 - The government published the guidance, Trade union law: transition to Employment Rights Act 2025. The guidance explains how the law will apply during the transitional period.

13 January 2026 - the draft Bereaved Partner’s Paternity Leave Regulations 2026 were laid before Parliament. Subject to the approval of both Houses, the Regulations will confer a right to up to 52 weeks' paternity leave where the child's "primary carer" (typically the mother or other adoptive parent) has died within 52 weeks of the birth or adoption placement.

14 January 2026 - Hutchinson and Others v County Durham and Darlington NHS Foundation Trust - The Tribunal found that an NHS Trust which allowed a trans woman to use the female changing facilities in line with gender identity was liable for indirect sex discrimination and harassment on the grounds of gender reassignment and sex.

20 January 2026 – Acas launched a consultation on a draft Code of Practice on time off for trade union duties and activities, reflecting the changes introduced by the Employment Rights Act 2025. 

21 January 2026 - Alpha Anne & Others v Great Ormond Street Hospital for Children NHS Foundation Trust – The EAT considered two issues arising from the insourcing of cleaning staff. The pre-transfer claim failed as section 41 of the Equality Act 2010 did not apply, there being no finding that the Trust had prohibited OCS from paying above the London Living Wage. The post-transfer claim succeeded, with statistical evidence establishing that the outsourced PCP disproportionately disadvantaged BAME employees. The Trust's reliance on TUPE as justification was rejected, as it had held the contractual power to vary terms from the outset.

4 - 6 February 2026 – Various government consultations were published:

• Recognition code of practice and e-balloting unfair practices,  seeking views on the revised code of practice during recognition and derecognition processes and on proposals on unfair practices in electronic ballots. The consultation closes on 1 April 2026.
• Fire and rehire – changes to expenses, benefits, and shift patterns, seeking views on 2 proposed changes to fire and rehire protections in relation to benefits and expenses, and to shift patterns. The consultation closes on 1 April 2026.
• Strengthening the law on tipping, seeking views on the laws on tipping. The consultation closes on 1 April 2026.
• Improving access to flexible working, seeking views on a new process for employers to follow when handling flexible working requests, as well as insights on flexible working practices more broadly. The consultation closes on 30 April 2026.
• Modernising the Agency Work Regulatory Framework, seeking views on the proposals to modernise the framework governing the temporary labour market. The consultation closes on 1 May 2026.

16 February 2026 - Ngole v Touchstone Leeds - The EAT has held that an employment tribunal erred in failing to determine whether a respondent's actions were because of a job applicant's beliefs, or the inappropriate manifestation of those beliefs.

18 February 2026 – Various trade union measures were brought into force. Please see our ERA Watch post for further details. 

26 February 2026 – Two further government consultations were launched:

• Threshold for triggering collective redundancy obligations, seeking views on the level and methods by which the new organisation-wide threshold for triggering collective redundancy obligations might be set. The consultation closes on 21 May 2026.
• Protection from detriments for taking industrial action, seeking views on the types of detriments that employers should be prohibited from imposing on workers for taking industrial action. The consultation closes on 23 April 2026.

4 March 2026 - The Office for Equality and Opportunity has published guidance on equality action plans.

If you would like further information on any of the topics discussed in this article, please contact a member of the Employment, Pensions and Immigration department  who will be happy to help.

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