Case Law Update: Menopause & Discrimination

By Andrew Willis
09 Nov 2021
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The menopause is a particularly contentious point in employment law. This is because there is precedent for it to be considered a disability—even though it’s not officially recognised. Here’s how that particular point influenced a recent ruling…

The EAT found that the ET had erred in striking out claims of sex and disability discrimination due to the menopause.

The tribunal didn’t explain why the claimant’s condition didn’t amount to a disability. They stated that there was insufficient evidence of sex discrimination for the claim to proceed. However, they didn’t provide a reasonable explanation for this decision. The claim has been remitted back to ET for fresh consideration of the issues.

What the law says...

The Equality Act 2010 prohibits discrimination on the grounds of sex and disability under sections (6) (11) and (13). The exception is if it is a proportionate means of achieving a legitimate aim (section 13 (3) and (6)).

“(1)A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

The Equality Act 2010 further outlines a person (P) having a disability if:

“(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”

The menopause is not automatically considered a disability under the Equality Act. However, it has the potential to be one if it meets the above criteria. Previous case law recognises menopause as a disability. As a result, employees can raise successful discrimination claims:

In Davies v Scottish Courts and Tribunal Service, the claimant succeeded in a claim for discrimination. This arose from disability when her employer dismissed her for misconduct. The tribunal found that her conduct had been affected by her menopausal symptoms.

Unfavourable treatment of menopausal staff has previously resulted in successful sex and age discrimination claims.

In Merchant v BT Plc, the claimant was dismissed following a final written warning for performance. Her manager was aware she was suffering from symptoms of the menopause. The manager was also aware that this affected her level of concentration. The manager dismissed without carrying out further medical investigations around her symptoms. The tribunal upheld the claimant’s claims of direct sex discrimination and unfair dismissal. The tribunal held that the claimant’s manager’s approach was irrational. He wouldn’t have adopted this approach with other, non-female related conditions.

In A v Bonmarche Ltd, the tribunal upheld claims of sex and age harassment. When the claimant began to go through the menopause, her manager demeaned and humiliated her in front of other staff who were younger. The manager called the claimant a “dinosaur.” On one occasion he criticised her for failing to staple together two pieces of paper, relating this to her being menopausal. The manager also refused to adjust the temperature in the shop to take account of the claimant’s requirements. 

Rooney v Leicester City Council

Facts

Rooney started her role as a childcare social worker in August 2006. In 2017, she started to experience menopausal symptoms. She had several periods of sickness absence because of this and due to work-related stress. Rooney felt that the management of her absences by her employer, Leicester City Council, was insensitive and heavy-handed. This led to her resignation in 2018.

The employee raised two separate tribunal claims:

First for constructive dismissal, non-payment of holiday and overtime, and reimbursement for expenses.

Her second claim was asserting disability and sex discrimination on the grounds of her disability due to the menopause.

What the Employment Tribunal decided

The ET summarised the claimant’s evidence that her symptoms resulted in her “forgetting to attend events, meetings and appointments, losing personal possessions, forgetting to put the handbrake on her car and forgetting to lock it, leaving the cooker and iron on and leaving the house without locking doors and windows. She also spent prolonged periods in bed due to fatigue/exhaustion. She further refers to dizziness, incontinence and joint pain”. However, they dismissed Rooney’s claim of disability discrimination. The ER stated that her medical conditions did not amount to a disability. They also stated that any impairment was not long-standing. But this claim was unsupported by any reasoning.

The ET struck out Rooney’s sex discrimination claim saying that it had no reasonable prospect of success. They came to this conclusion:

Rooney relied on her embarrassment about discussing her menopausal symptoms with men.

However, no comparator (real or hypothetical) were suggested. The ET said that the claim appeared to be an “add-on” without any substance.

What the Employment Appeal Tribunal decided

The EAT conducted an evaluation of her disability discrimination claim. They found that there was no explanation as to how the Tribunal concluded Rooney’s evidence didn’t demonstrate an effect on day-to-day activities that was more than minor or trivial. The EAT didn’t reject Rooney’s evidence. Instead, the EAT stated that the ET erred in focussing on the things that Rooney could do. They failed to weigh this against what she couldn’t do.

The EAT also found that the ET’s decision to dismiss the sex discrimination claim fails to comply with a fundamental requirement:

To explain to the claimant why her appeals were struck out.

The ET didn’t take into consideration the employee’s claims as clarified in the Scott Schedule.

What this means for employers

Pro-actively consider ways to support employees who are going through the menopause.

A working space close to fans, air conditioning, windows or doors, and away from heaters, can help them feel more comfortable. Similarly, some flexibility can help put staff at ease. For example, flexible working arrangements, more frequent or longer rest breaks and relaxed dress codes.

Be prepared for the implications of this ruling. Contact Croner today. We help you make sense of the rules affecting your business and help you stay on the right side of the law.

Speak to a Croner employment law expert. Call 01455 858 132.

About the Author

Andrew Willis

Andrew Willis is the senior manager of the Litigation and Employment Department and assumes additional responsibility for managing Croner’s office based telephone HR advisory teams, who specialise in employment law, HR and commercial legal advice for small & large organisations across the United Kingdom.

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