Case update (3):  Disability discrimination and the menopause

What do we already know?

We have previously discussed legal issues surrounding the menopause and the workplace (see here).  In Anne-Marie Boyle’s blog Menopause – the last workplace taboo? Part 2 she highlighted disability discrimination as a particular risk and that staff with strong menopausal symptoms could well qualify as being disabled.  At this time there were only tribunal decisions to confirm this risk.  However, we now have the below EAT decision to confirm it.

What’s new?

Summary:  Can symptoms relating to the menopause amount to a disability under the Equality Act 2010?

Yes, says the EAT in Rooney v Leicester City Council available here.

Background:  The Equality Act 2010 says that someone is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to perform day-to-day activities.  The definition can be summarised in the following questions:

• Does the person have a physical or mental impairment?
• Does the impairment create an adverse effect which is substantial?
• Is that substantial adverse effect long-term?
• Are the long-term substantial effects on day-to-day activities?

‘Substantial’ means ‘more than minor or trivial’. ‘Long-term’ means that the condition is permanent or has lasted, or is expected to last, 12 months or more.

There is no specific mention of menopause symptoms in equalities legislation or in the Equality and Human Rights Commission’s Code of Practice on the meaning of disability. However, the Tribunal decision in Donnachie v Telent Technology Service Limited in 2020 found that the employee’s significant menopausal symptoms did amount to a disability and the judge commented that he saw “no reason why in principle, typical symptoms cannot have the relevant disabling effect on an individual”.

Facts:  The employee, Ms Rooney, worked for Leicester City Council as a childcare social worker from 2006 until her resignation in October 2018.  Part of her reason for resigning was that she felt her managers had not supported her during the menopause and had subjected her to unfavourable treatment.

Ms Rooney’s symptoms related to the menopause included insomnia, light-headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines and hot flushes. Ms Rooney had been suffering from these symptoms for two years, was struggling to cope with everyday life and was under the care of a consultant doctor at specialist menopause clinic.

Ms Rooney brought tribunal claims for disability and sex discrimination, and harassment and victimisation related to her menopausal symptoms.

Tribunal decision

The Tribunal decided (at a preliminary hearing) that Ms Rooney was not disabled and her disability discrimination claim was dismissed, along with her claims of harassment and victimisation.

Ms Rooney appealed.

EAT decision

The EAT upheld the appeal. It found the Tribunal had incorrectly analysed Ms Rooney’s symptoms in respect of the definition of disability under the Equalities Act 2010.

The EAT considered that although Ms Rooney could undertake some day-to-day activities, her menopausal symptoms were ‘more than minor or trivial’ – for example, leaving her house without locking doors and windows, forgetting to attend meetings and events, and spending long periods in bed due to fatigue and exhaustion.  The EAT also considered Ms Rooney’s symptoms were ‘long term’  because they had lasted more than twelve months by the time she resigned from the Council.

The Tribunal had incorrectly weighed up what Ms Rooney could do against what she could not.  The focus should be on what an employee cannot do. The issue of what someone can do will only be relevant where there’s a dispute about what they cannot.  For example, if an employee says that they are permanently fatigued, it is relevant for an employer to present evidence that they are an active sportsperson.

Implications:

This is helpful EAT level confirmation that employees suffering from significant menopausal symptoms may be classed as disabled.  It is a warning to employers (and their advisors!) that failing to notice and address the symptoms of menopause can create liability under the Equality Act 2010.  Symptoms of menopause may have a substantial and long term adverse effect on someone’s ability to perform day-to-day activities.  In these situations an employer must make reasonable adjustments for the employee and ensure they do not discriminate against them.

Although awareness of menopause issues in the workplace has increasingly improved (interestingly, this decision came out in the same month as World Menopause Day on 18 October), there is still work to do.  In this respect the Women and Equalities Committee launched an Inquiry into menopause and the workplace in July 2021. The aims of the inquiry are to:

• examine existing discrimination legislation and workplace practices to consider whether enough is being done to prevent women leaving their jobs as a result of menopausal symptoms;
• provide recommendations to shape policies to address gender equality, including the extent to which women face menopause discrimination, the impact on wider society, the economic impact of menopause discrimination and how policies addressing workplace menopause discrimination can be implemented; and
• consider whether further legislation is required to enable employers to put in place a workplace menopause policy to protect women experiencing the menopause against discrimination whilst at work.

We are waiting for the findings of the Inquiry.  However, one possible outcome is that it may recommend making menopause a specific ‘protected characteristic’ under equalities legislation (similar to pregnancy and maternity).  In the meantime, our recommendations remain as set out in Anne Marie’s blog here and employers  should continue to make reasonable adjustments to help make working life easier for those suffering from menopausal symptoms.