Is an employee with menopausal symptoms disabled?
Jackie Denham discusses the first EAT decision that considers this question.
In a recent case the Employment Appeal Tribunal (EAT) found that the Employment Tribunal (ET) erred in striking out a disability claim brought by someone experiencing menopausal symptoms.
By way of a reminder a person is disabled, for the purposes of the Equality Act 2010 (EqA), if they have a physical or mental impairment and that impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. A “substantial” effect means more than minor or trivial (so not a particularly high threshold). That impairment must have a ‘long term’ effect which means it must have lasted for 12 months or is likely to last for at least 12 months.
This particular case centred on Ms Rooney, who worked for Leicester City Council. She was a childcare social worker until her resignation in October 2018. The council had referred her to occupational health but were unable to provide her with the female doctor she had requested. She was embarrassed to share full details of her symptoms with male colleagues. When she had mentioned her hot flushes, a male manager had stated they also felt “hot” in the office and did not see it as a symptom of menopause. She felt her employer had not taken her symptoms seriously.
A few months after her resignation Ms Rooney brought claims for constructive dismissal, unpaid holiday pay, overtime and expenses. In the claim Ms Rooney’s solicitor stated that her work-related stress and menopause symptoms did not amount to a disability. Ms Rooney was not aware the solicitor had stated this.
Ms Rooney presented a second claim in which she was unrepresented including allegations of sex and disability discrimination, including harassment and victimisation. The claim stated that Ms Rooney had suffered from various psychological and physical effects of menopause for 2 years. These symptoms had a negative effect on her life to the point that she was struggling to cope. Her GP referred her to a specialist menopause clinic and she had prescribed hormone replacement therapy.
The ET determined that her disability discrimination claims should be dismissed because she was not disabled for the purposes of the EqA. Ms Rooney appealed.
The EAT held that the ET erred in law in finding Ms Rooney was not disabled, the case has been remitted to an alternative ET to be reconsidered. Most importantly the EAT could not understand how the ET could have concluded that Ms Rooney’s symptoms did not have more than a minor or trivial effect on her ability to carry out day to day activities or that she failed to establish her impairments were long term. Ms Rooney stated her symptoms had started well over a year before she resigned and were ongoing. Her symptoms were severe including hot flushes, palpitations, anxiety, night sweats, sleep disturbance, fatigue, poor concentration, urinary problems and headaches. They resulted in her forgetting to attend meetings, losing her possessions, forgetting to use her handbrake and lock her car, house and windows, leaving the cooker and iron on, suffering from fatigue and exhaustion, dizziness, incontinence and joint pain. It is indeed incredibly difficult to see how the ET had concluded Ms Rooney’s condition did not satisfy the definition of disabled!
The employer’s approach to Ms Rooney’s health concerns and indeed the ET’s decision, and perhaps even the solicitor’s decision to state in the original claim that her symptoms did not amount to a disability, is unfortunately a reflection of the lack of knowledge and awareness of the symptoms of menopause and how severe they can be. Menopause is a matter that has received increasing attention in recent times in an employment context and claims by those who believe they have been discriminated against in connection with their menopausal symptoms are on the increase. It is important that all businesses and advisers are trained to fully understand the potential symptoms of menopause and perimenopause and how to support those individuals impacted (either directly or indirectly) both within and outside of the workplace. Being dismissive or unaware of such matters may lead to discrimination claims on the grounds of disability, age and/or sex.
Our upcoming webinar Menopause and the Workplace will provide an overview of menopausal symptoms and the possible impact in the workplace, advice on the legal risks to be aware of and a discussion on the different approaches to action and support employers are taking. If you would like further details or to register, please click here.