Are menopausal symptoms covered by the Equality Act?

Posted on: November 2nd, 2021

The short answer is potentially they are, and employers should be conscious of this topical issue as the menopause directly affects the largest growing demographic in the workplace. 

Background

Previously discussions around the menopause and the impact for individuals has been limited due to the personal nature of the topic and the fact that there was limited case law in this area.  However, the position is changing. 

World Menopause Day was marked on 18 October; it is also a topic that is on the government’s radar following the launch of an Inquiry into Menopause and the Workplace.  Further research suggests that the number of employment tribunal claims concerning menopause are rising significantly and we now have a binding ruling from the Employment Appeal Tribunal (EAT) considering the effect of menopausal symptoms on employees and protection from discrimination.  

Menopausal symptoms

The menopause usually happens between 45 and 55 years of age, however, it can happen earlier or later.  According to the ACAS guidance on ‘Menopause at work’, the menopause affects half the population, and it can often be a difficult and stressful time.  Some of the symptoms that women going through the menopause can experience include:

  • hot flushes;
  • disrupted sleep (insomnia) and night sweats;
  • difficulties with memory and concentration;
  • headaches and join stiffness; and
  • excessive bleeding.

Protection for staff

The menopause is not a protected characteristic under the Equality Act 2010.  Therefore, individuals who have been treated poorly by their employer in connection with symptoms from the menopause have to consider protection under one of the 9 current protected characteristics such as sex, age and/or disability discrimination. 

Typically, individuals pursuing claims concerning menopause seek to rely on disability discrimination due to the impact that the menopause has on their health and day to day life.  To succeed with a disability discrimination claim, individuals need to show that they have a mental or physical condition which has a substantial and long-term impact on their ability to carry out normal ‘day to day’ activities. 

Day to day activities includes activities inside and outside the workplace for example sleeping, exercising and traveling.  Therefore, where an individual’s normal daily life is substantially (so more than trivially) impacted by menopausal symptoms they are potentially covered by this definition.  Whether the effects are considered to be long-term depends on whether they have lasted or are likely to last for more than 12 months. However, given that it is estimated that the effects of the menopause can last for about 4 years, symptoms are likely to be long-term. 

Case Law

Menopause is not directly covered by discrimination laws and there is very little case law in the area, meaning that it can be complex to decide on the merits of a claim.  However, the case of Rooney v Leicester City Council has now added some clarity.

Facts

Ms Rooney worked for Leicester City Council as a social worker from 2006 until she resigned in 2018.  Ms Rooney was suffering menopausal symptoms including, confusion, light headedness, insomnia, depression, stress, anxiety, migraines, and hot flushes and said she had been suffering with those symptoms for 2 years.  She also claimed that she had been struggling to cope with everyday life and was seeing a specialist in menopausal care.  Ms Rooney submitted an impact assessment which highlighted the difficulties she had experienced, including forgetting to attend events/meetings, forgetting to lock her car, leaving the cooker and iron on and forgetting to lock up the house. 

Ms Rooney brought several claims in the Employment Tribunal including disability and sex discrimination, harassment and victimisation all linked to her menopausal symptoms. 

The Employment Tribunal had to decide, amongst other things, whether Ms Rooney was disabled (in accordance with the above test) and they found that she wasn’t.  Therefore, her disability discrimination claim was dismissed.  Ms Rooney appealed this decision to the Employment Appeal Tribunal (EAT).

Decision

Unsurprisingly, the EAT decided that the Employment Tribunal decision was not ‘supported by any reasoning’ and the Tribunal had got it wrong.  The EAT found that:

  • Ms Rooney had presented a large amount of evidence about the substantial affects her menopausal symptoms had on her daily life; and
  • that while she could undertake some of her normal day to day tasks, a number of her other daily activities were substantially impacted by her menopausal symptoms.

The EAT also found that Ms Rooney’s symptoms where long term because her symptoms started in August 2017 and were ongoing when she left employment in October 2018. 

The case has been remitted to a new employment tribunal to determine the outcome of the disability discrimination claim and it has been suggested that the parties may like to consider the best way forward.  This suggests that the employer may want to concede some of the issues. 

Should menopausal symptoms be included as a protected characteristic in their own right?

The above case highlights the issues that arise in considering employment claims involving the effect of the menopause on staff at work and the need for clarity. 

In July 2021 the government launched an Inquiry into Menopause and the Workplace and the report is now awaited.  One potential outcome of the inquiry is that menopause may be added as a standalone protected characteristic under the Equality Act 2010 which of course would help in providing further clarity in this area. 

What can employers do in the meantime?

While further guidance is awaited it would be sensible for employers to be aware of the potential issues and hurdles that staff going through menopause can face.  Employers should consider:

  • Carrying out general risk assessments that consider the needs for menopausal staff (identifying adjustments that might assist e.g. providing desk fans, natural light and access to quiet spaces).
  • Encouraging open and supportive conversations with members of staff to help support them.
  • Putting in place a menopause policy.
  • Training for managers and senior leaders around spotting employees who may be suffering or struggling at work (with menopausal symptoms or any other issues e.g. stress).

Here to help

We work with a number of clients to ensure they are supporting and retaining staff who may be struggling at work whilst making sure the business can also continue to operate efficiently and effectively.  Please contact Sarah Burke if you would like to discuss how we could help. 

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