Menopause at work and the challenges involved

The Employment Appeal Tribunal (“EAT”) in the case of Rooney v Leicester City Council has considered whether the Employment Tribunal was wrong to strike out an employee’s claim for sex discrimination, harassment and victimisation and in concluding that an employee suffering from menopause was not disabled under the Equality Act 2010 despite her suffering from a number of unpleasant symptoms over a prolonged period of time.

Background

The Claimant worked as a childcare social worker at Leicester City Council (“the Respondent”). The Claimant had suffered from physical, mental and psychological effects from the menopause (including but not limited to insomnia, light-headedness, stress, depression, anxiety, memory loss, hot flushes) for 2 years. These symptoms had a serious effect on the Claimant’s ability to carry out day to day tasks and mentally cope with her work. The Claimant underwent prescribed hormone replacement therapy (HRT) and was under the care of a consultant at a specialist menopause clinic.

Following a number of instances at work, including male colleagues dismissing the fact she suffered from menopausal symptoms, the Claimant resigned on 29 October 2018 and subsequently brought a claim to the Employment Tribunal, claiming constructive unfair dismissal, unpaid holiday pay, other unpaid payments and whistleblowing. The Claimant brought a second claim, the following day, claiming discrimination on the grounds of sex and disability as well as harassment and victimisation.

The Law

Section 6 of the Equality Act 2010 (“the Act”) defines the meaning of disability in the employment context. ‘A person has a disability if they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.’

For an impairment to be “long-term” it must either have lasted for at least 12 months, is likely to last for 12 months or likely to last for the rest of the individual’s life (Schedule 1 Equality Act 2010). Additionally, it is necessary to determine whether the impairment has a “substantial adverse effect” which is defined in section 212 of the Act as “more than minor or trivial.” An Employment Tribunal is required to determine this by considering the effects of the disability on the individual employee directly. The threshold to be classified as disabled is not particularly high.

Decision

The Employment Tribunal (“ET”) in a preliminary hearing, held that the Claimant did not have a disability in relation to the menopausal symptoms she suffered and/or the associated symptoms of anxiety and depression and dismissed her claim for disability discrimination before the final hearing. The ET further dismissed her claims of harassment and victimisation and struck out her claim of sex discrimination on the view that it had no reasonable prospect of success.

The Claimant appealed this decision to the EAT. The EAT, allowing the Claimant’s appeal held that the Tribunal was wrong to conclude that the Claimant was not disabled under the Act. The EAT concluded that the ET failed to properly consider the definition of “long-term” under the Act and was wrong to conclude that the menopausal symptoms suffered by the Claimant did not have more than a minor or trivial effect on her ability to carry out day-to-day activities.

The EAT further criticised the ET for striking out the Claimant’s sex discrimination claim without proper analysis or sufficient reasons explaining their decision to do so and failed to provide any reasons at all for their rationale in deciding to dismiss her claims for harassment and victimisation. The claim has now been remitted back to a fresh ET to determine the issues of the case.

Comment

This case is a stark example of the difficulties and symptoms faced by women going through the menopause, particularly in the workplace. With the World Menopause day taking place a few days ago on 18 October and celebrities such as Davina McCall trying to open the discussion about menopause, there has been a lot more public awareness in recent years about these challenges and a push for further support for women in managing the effects of menopause in day-to-day life but also at work.  Unfortunately, this case further highlights the difficulties women still have in explaining to their employers the impact of the menopause on them or, when the working relationship breaks down, in establishing that their menopause may amount to a disability, due to the substantial and adverse impact it can have on their ability to carry out day-to-day tasks. Clearly not all women who go through the menopause will be disabled as defined in the Act, as much will depend on the impact the menopause has on them specifically. Training improving awareness of the condition and its potential impact on women will be key to ensuring employees going through the menopause are supported during that time and remain valuable productive employees.

The Women and Equalities Committee have held an inquiry into this and their recommendations are yet to be published but it is anticipated that it will reiterate the importance for employers to understand the effects of menopause and support their staff as far as possible to ensure the continued wellbeing of their workforce.

If you would like to explore the delivery of training on that topic to your team, please contact us on 0191 282 2880 to discuss the bespoke training we could offer to assist with that.

Case reference: Rooney v Leicester City Council EA-2020-000070-DA and EA-2021-000256-DA

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