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Talking about …the menopause and the courts

Posted on 1 November 2022

October marks World Menopause Month. The purpose of World Menopause Month is to raise awareness of the menopause and options to improve the health and wellbeing of women in mid-life and beyond.

In our first article, we explored some of the issues that menopausal employees face in the workplace and why the menopause is a real issue that employers must address. This article continues that conversation and in doing so, focusses on the options that menopausal employees currently have, if they believe they have suffered an adverse consequence because of, or arising out of, the menopause. It also looks at some of the early cases that have been decided by the Tribunals, where menopausal issues have been raised.

So – the starting point is that the menopause is not currently a protected characteristic for the purpose of discrimination legislation. This means that if a menopausal employee believes they have suffered adverse treatment because of the menopause or symptoms connected to it, the options they have are either; (1) bring an unfair dismissal claim if they are an employee that has at least two years’ service, and the treatment being complained of is dismissal; or (2) construct a discrimination case on the grounds of either; disability, age; or sex.  None of these options are straightforward, nor a natural fit for the menopause. But as legislation stands at the moment, this is a good as it gets.

Perhaps it is because of the difficulties associated with “squeezing” a menopause-related claim into the confines of existing discrimination legislation, that the number of menopause-related claims that have been determined by the Tribunal remains very low? However, notwithstanding this, a trickle of cases where the menopause has been cited as a relevant issue, have started to emerge from the Tribunals and we anticipate this trickle to turn into a steady flow of cases in coming years. So what do these early cases tell us?

1. Depending upon the severity and impact of a menopausal employee’s condition, it may be possible for that person to meet the definition of disability in the Equality Act 2010 (EA).

In a 2020 Preliminary Hearing, an Employment Tribunal held that it is possible in principle for a person that experiences menopausal symptoms to be classified as disabled under the usual EA principles – that is, if the physical or mental symptoms suffered by the menopausal employee amount to an impairment that is long term (likely to last 12 months or more) which has a substantial adverse impact on a person’s day to day activities.  In the case in question, the Tribunal assessed the Claimant’s condition against these factors and had no hesitation in determining that she was disabled. The Claimant in this case suffered from a variety of symptoms which when combined, had a detrimental impact on her sleep causing fatigue, memory difficulties and concentration, all of which affected her normal day-to-ay activities such as reading and using a computer. [Miss J Donnachie v Telent Technology Services Limited (2020)].

2. Depending upon the facts, it may be possible for a menopausal employee to bring a sex-related discrimination claim.

In the case of Rooney v Leicester City Council [2021] 10 WLUK 69 | [2022] I.R.L.R. 17, Mrs Rooney – a social worker for the Respondent local authority – brought a case against her employer on the grounds of both disability and sex.  Her claim was that her employer had failed to support her at a time when she was suffering severe menopausal symptoms which impacted her at work.  This treatment included a refusal to refer her to a female Occupational Health specialist, and lack of support from management. This lack of support included her male manager’s seeming dismissal of a concern that she raised about experiencing hot flushes, and a decision by her employer that a hearing that was convened to consider her appeal against a warning issued for absences connected to the menopause, should be heard by an all-male panel. Ultimately Mrs Rooney resigned in response to her employer’s treatment.

Her sex discrimination claim was struck out by Employment Tribunal on the grounds that it had no reasonable prospect of success. However, on appeal, the Employment Appeal tribunal (EAT), held that in relation to her sex discrimination claim, the original ET had not given any reasoning as to why that particular claim had been dismissed and as such it was remitted back to the ET.  We assume that the matter was later settled but importantly a principle had been set that a sex discrimination claim may be an option that menopausal people could use,  to challenge treatment related to the menopause.

3. Depending upon the facts, it may be possible for a menopausal employee to bring an age-related discrimination claim.

If readers want to read a case about how a menopausal employee should not be treated by their employer, then this is the case to read – A v Bonmarche Ltd (In administration) ETS/4107766/19.  In this case, Mrs A (identity anonymised), a senior supervisor at BonMarche was bullied and ridiculed by her manger as she was going through the menopause. From all accounts she had enjoyed a successful retail career both prior to her starting work with Bonmarche as well as in that employment up to the point where her symptoms became more debilitating.  At one point her manager called her a dinosaur in front of others when she struggled to use an iPad, as well as making other unwanted comments. Mrs A resigned and brought a direct age discrimination claim as well as a harassment claim based on age. She was successful in both claims.

On the direct age discrimination claim, the Tribunal held that the appropriate comparator was an employee who was not a female of menopausal age. In this case, it was clear that the comments were specifically related to the Claimant’s age and sex and would not have been said to someone who did not have these characteristics and therefore this was less favourable treatment which could not be justified. With regards to the harassment allegations, the Tribunal concluded that it was clear that her manager’s comments had created a hostile environment for Mrs A and were directly related to her status as a woman going through the menopause and as such she had suffered unlawful harassment.

The above cases show how early menopause-related claims are bring framed by those seeking to challenge their employer’s behaviour. They also show a willingness on the part of the Tribunal to grapple with the very real issues faced by people experiencing the menopause. Case numbers remain low. However, as the number of menopausal employees in the workplace increases (alongside heightened awareness of the topic), we anticipate a significant rise in cases featuring menopause-related issues in coming years.

In our next article, we continue our discussion about the menopause at work, and will look at some areas of potential reform.

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