Just a few days before World Menopause Day, the Employment Appeal Tribunal has given its first ever ruling on whether typical menopausal symptoms can amount to a disability for the purposes of the Equality Act. It has overturned an employment tribunal decision which had dismissed Ms Rooney’s claim for disability discrimination, and has remitted this issue for reconsideration.
Ms Rooney, a child care social worker employed by Leicester City Council, had brought a number of claims against her employer, including a claim for disability discrimination. She argued that the menopausal symptoms she was experiencing had a substantial and long term adverse effect on her ability to carry out day to day activities. She claimed that as a result she met the definition of a disabled person set out in the Equality Act.
Her symptoms were summarised by the employment judge as follows:
"She states that her menopausal symptoms included, inter alia, hot flushes and sweating, palpitations and anxiety, night sweats and sleep disturbance, fatigue, poor concentration, urinary problems and headaches.
Specifically, 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 refers to dizziness, incontinence and joint pain."
This evidence was not contested, so the EAT found it hard to understand from the written reasons for the decision why the employment judge had dismissed her disability discrimination claim. It therefore remitted this issue to the employment tribunal, emphasising that a ruling on this point required “careful factual analysis”. While the EAT did not make its own finding that Ms Rooney was a disabled person, it would not be surprising if the tribunal reaches this conclusion second time round.
There have been a fair number of tribunal decisions in recent years which have decided that claimant with moderate to severe menopausal symptoms was a disabled person. Some recent examples are given in this article here. However, the significance of this new decision from the EAT is that it reminds all tribunals that menopausal symptoms are to be treated seriously, like any other kind of impairment, when assessing a claim for disability discrimination.
While there has been an increasing openness about discussing the symptoms of the menopause in recent years, there is still evidence that that they can be trivialised or even mocked in some workplaces. In this latest case, one of Ms Rooney’s complaints was that her manager had responded to her disclosure that she suffered from hot flushes by saying that he also got hot in the office.
This writer has been arguing for many years that employers would be well advised to develop a policy about the menopause. There is now plenty of guidance on best practice to support such initiatives, and with over 3 million women in the workplace between the ages of 45 and 55, a strong incentive to improve the workplace experience for these women.
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