October is World Menopause Month, and with 13 million women currently going through the menopause it is not surprising that the Employment Tribunals and ACAS suggest that more and more claims are being pursed where adverse treatment as a result of the menopause is being alleged. The menopause is not a protected characteristic itself and as such claims are being pursued on the basis of age, sex or disability discrimination instead.
In one such case, Rooney v Leicester City Council, the Employment Appeal Tribunal (EAT) was asked to consider whether menopausal symptoms can amount to a disability within the meaning of the Equality Act 2010.
The Claimant had been employed by Leicester City Council for some 11 years. She sought to pursue several claims against her employer including victimisation, harassment, sex and disability discrimination where she alleged that she was disabled due to her ‘severe menopausal symptoms’ (both physical and psychological symptoms).
In order for a physical or mental impairment to amount to a disability, it must have a substantial and long term adverse effect on a person’s ability to carry out normal day to day activities.
The Claimant alleged that her menopausal symptoms included, hot flushes and sweating, palpitations and anxiety, night sweats and sleep disturbance, fatigue, poor concentration, urinary problems and headaches. She said that her symptoms led to 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 referred to dizziness, incontinence and joint pain.
Although on first consideration the Employment Tribunal had rejected the suggestion that the Claimant had been discriminated against and that her condition amounted to a disability, the Employment Appeal Tribunal concluded that the Tribunal had not properly explained why they had reached this decision and remitted the case to be heard by a fresh Tribunal.
This decision is a reminder to employers that menopausal symptoms could potentially amount to a disability, which in turn will trigger both an obligation to make reasonable adjustments and also provide protection to an employee who feels they are being treated less favourably for reasons connected to their menopause. There are lots of scenarios in which this could potentially become an issue, including where an employee who is being performance managed believes their decline in performance is directly linked to the fact they are experiencing the menopause.
Whilst more and more people are talking about the menopause, with the likes of Davina McCall on Channel 4, awareness campaigns such as World Menopause Day and #makemenopausematter trending on social media, it still appears to remain a ‘taboo’ subject at work. It is estimated that there are 3.7 million women over 50 years of age in the workplace in the UK and given that women over 50 are the fastest growing part of the workforce it is important for employers to consider the effects of the menopause on their staff and to tackle this issue head on.
It is good practice for employers to develop a menopause policy to provide more information to staff, to take steps to tackle the stigma associated with the menopause by encouraging open conversations and by having more information readily available to staff about the menopause. Employers should consider providing awareness training for mangers and should ensure appropriate support is available to those experiencing the menopause, which may include making reasonable adjustments to the role. Given that it is World Menopause Month now is a good time to take action.
This is only intended to be a summary and not specific legal advice. If you would like further information or advice, please do contact a member of our team.
Please do get in touch with the employment team if you would like assistance drafting a menopause policy or if you have any other employment law query. Contact Selene Holden (email@example.com ~ 01284 717436), Greg Jones (firstname.lastname@example.org ~ 01284 717446), Angharad Ellis Owen (email@example.com ~ 01284 717453) or Katie Harris-Wright (katieharris-wright@Greene-Greene.com ~ 01284 717442).
- Guidance for employers to help manage the impact of menopause at work | Acas
- Menopause in the workplace: helpful resources – Henpicked
- Menopause toolkit Eng FINAL.pdf (tuc.org.uk)
- Davina McCall: Sex, Myths and the Menopause – All 4 (channel4.com)
- Home – International Menopause Society (imsociety.org)
- Menopause in the Workplace – Women’s Health Concern (womens-health-concern.org)