Menopause and disability discrimination

On 18 October 2021 we marked World Menopause Day. It is, therefore, timely that, this month, the Employment Appeal Tribunal has provided one of the few binding rulings on this topic. It has considered whether employees experiencing severe menopause symptoms can be protected from disability discrimination.

Background

Menopause symptoms

On average, the menopause occurs between the ages of 45 and 55. It therefore directly affects the largest growing demographic in the workplace at the moment: women aged over 50 years old (10 million, at the last count). Many women will transition through menopause without difficulty, but for some the symptoms can be extreme and can include:

• headaches
• joint stiffness
• hot flushes
• night sweats and disrupted sleep
• excessive bleeding; and
• difficulties with memory and concentration.

Definition of disability

A person will be classed as disabled under equalities legislation if they have a physical or mental condition which has a

• substantial; and
• long-term

adverse effect on their ability to carry out normal 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, since a 2020 Employment Tribunal case called Donnachie v Telent Technology Service Limited, it has been thought likely that a person suffering from significant menopause symptoms would fall within the scope of disability protections.

There is very little caselaw guidance on when employees with menopause symptoms might be covered by discrimination legislation. But this month, the Employment Appeal Tribunal (EAT) has ruled on this issue, in Rooney v Leicester City Council.

Facts

The Claimant, Ms Rooney, worked for Leicester City Council as a childcare social worker, until her resignation in October 2018.

Amongst other claims, Ms Rooney alleged that she had been subjected to disability and sex discrimination, and harassment and victimisation related to her menopausal symptoms.

The symptoms from which Ms Rooney was suffering 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.

Before Ms Rooney’s claims could proceed to a full hearing, an Employment Tribunal had to decide (amongst other questions) whether Ms Rooney was disabled.

The Employment Tribunal found that Ms Rooney was not suffering from a disability and her disability discrimination claim was dismissed, along with her claims of harassment and victimisation.

Ms Rooney appealed.

Decision

The EAT said that the Employment Tribunal was wrong to find that Ms Rooney was not disabled and it had incorrectly analysed Ms Rooney’s symptoms.

Looking at the definition of disability for the purposes of disability discrimination (see above), the EAT noted 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.

It was also clear to the EAT that Ms Rooney’s symptoms were long term (in line with the criteria outlined above) because her symptoms had started in August 2017 and were ongoing when she left the Council’s employment on 29 October 2018.

Our comment

The EATs decision is perhaps unsurprising given the extent of the Claimant's difficulties. However, it is helpful because it re-enforces a previous, non-binding, Employment Tribunal case which also said that employees suffering from significant menopausal symptoms may be classed as disabled (Donnachie v Telent Technology Service Limited). Prior to this month's EAT decision there was no binding caselaw on this important point, affecting a large section of the workforce.

And the timeliness of this case is noteworthy. The decision comes shortly before World Menopause Day (18 October 2021) and at a time when menopause issues have come under the spotlight in the media and amongst legislators.

In July 2021, the government launched an Inquiry into Menopause and the Workplace. The Inquiry is now closed for submissions and its findings are awaited. One possible outcome is that it may recommend making ‘menopause’ a specific ‘protected characteristic’ under equalities legislation. However, in our view, this seems unlikely; it is more likely that it will recommend further guidance or a new Code of Practice.

If you would like to hear more about managing the menopause at work, this will be covered at our Annual Employment Update webinar on 23 November 2021. Further details about this event and how to register will be available on our website in the coming weeks.

We also discuss the thorny issue of assessing whether an employee is disabled for the purpose of equalities legislation in our latest podcast, which you can listen to here.

Contributor: Sarah Maddock