Menopause at work: Avoiding discrimination claims

Everyone is talking about the menopause which, from an equality and diversity perspective, can only be a good thing. Celebrities from Davina McCall to Michelle Obama have stepped forward to share their experiences, and to bring into the open some of the challenges women face, both in their personal lives and at work, during this transformative time of their lives.

Many employers have ‘met the moment’ by announcing new employee-support initiatives. For example, high street firm Timpson has set the bar high by pledging to pay menopause related prescription costs for its staff.

However, it appears that, increased awareness and empowerment has brought with it an increase in litigation, with reports in the press that menopause is at the centre of an increasing number of UK employment tribunal claims, including unfair dismissal and allegations of discrimination. While workplace practice is improving, there is clearly still much further to go.

To mark World Menopause Month, we consider what you can do to support employee’s experiencing menopause, and how best to safeguard your organisation against potential discrimination claims.

Is menopause a disability? New EAT decision

Menopause can undoubtedly cause a distressing and disruptive impact on women’s physical and mental health; but is menopause a ‘disability’ for the purposes of Equality Act 2010, and will an employer be liable for discrimination if it fails to make reasonable adjustments?

In a timely decision, given this month’s focus on menopause issues, the EAT has considered just this question. In Rooney v Leicester City Council the Claimant, Mrs Rooney was employed as a childcare social worker. She resigned from her employment, and brought multiple employment tribunal claims including constructive dismissal, and a claim of disability discrimination, referencing the Council’s treatment of her in respect of her menopause symptoms.

She alleged that she had suffered from the physical and mental effects of the menopause for around two years, including insomnia, light-headedness, palpitations, depression and anxiety, memory loss and hot flushes. She stated that these symptoms impacted negatively on her life, to the extent that she struggled to cope. At work, frequently felt overwhelmed, and missed meetings and client appointments due to her memory loss and confusion. She also reported losing personal possessions and forgetting to lock her doors and windows and turn off appliances. Her GP had prescribed hormone replacement therapy, and she was under the care of a consultant at a specialist clinic.

The employment tribunal that first heard the case held that Mrs Rooney was not suffering from a disability in respect of her menopause symptoms, and her claim was struck out as having no reasonable prospects of success. It held that the legal definition of disability in the Equality Act 2010 was not met, as her symptoms did not have ‘a substantial and long-term effect on her ability to carry our day-to-day activities’. This was largely because she was still able to provide care for her elderly parents, and had cited stress at home as a contributing factor to her depression and anxiety.

However, when Mrs Rooney appealed this decision, the EAT disagreed with the employment tribunal’s findings. It considered that, on various grounds, the employment tribunal had not properly analysed the legal test for ‘disability’. Crucially, in respect of Mr Rooney’s menopause symptoms, the employment tribunal’s assessment that their impact was ‘minor or trivial’ was not reasonable. In her evidence, she had clearly painted a picture of mental and physical distress that affected her extensively. The fact that she could still carry out her domestic role as a carer did not necessarily mean that she was not disabled. Also, the employment tribunal had not properly considered whether the impact of her symptoms was ‘long-term’ (defined in legislation as lasting, or likely to last 12 months or more).

There has been some discussion in legal circles regarding whether it is important to distinguish the menopause itself from the symptoms of the menopause, when thinking about disability. In other word, is it possible to say that the menopause itself is not a disability, but that its effects might be?

Interestingly, an earlier preliminary decision in the case of Donnachie v Telent Technology Services suggests that this distinction will not really be material going forward. In that case, the employment tribunal carried out an analysis of the extent to which the Claimant’s menopausal symptoms impact on her day-to-day activities and concluded that she was ‘disabled by reason of menopause or symptoms of menopause (including anxiety and problems with concentration)’, as there was significant evidence from the Claimant’s GP linking her symptoms with the menopause. There is no clear distinction drawn as to whether the menopause itself, or the symptoms of the menopause, constituted disability. The employment tribunal conflated the two.

So, in summary, disability discrimination claims based on symptoms of the menopause are really no different than claims based on other medical conditions. The focus should be firmly on the symptoms experienced, and how these impact on the individual. Timely occupational health involvement, as well as input from an employee’s GP or other treating clinicians, is essential to build a full a picture as possible, and to clarify whether menopause is the underlying cause of the symptoms experienced.

What about other types of discrimination?

As the cases above show, it is often not straightforward for an employee experiencing menopause to evidence that they are legally disabled, even if symptoms are significant.

For that reason, an employment tribunal claim citing menopause as the basis of less favourable treatment is likely to raise other protected characteristics too; most commonly sex and age discrimination.

Of course, more women will experience menopause than other gender groups, although it is important to be mindful that transgender women can also experience menopause-like symptoms, caused by gender-affirming medication, or hormone fluctuations associated with other treatment.

Likewise, menopause will be most commonly experienced by women in a relatively narrow age bracket (according to the NHS, between 45 to 55 years, with the average age of reaching menopause standing at 51). However, it should be noted that much younger women can also be affected, with 1 in 100 experiencing menopause before 40 years of age.

With an eye to the future, the parliamentary Women and Equalities Committee recently launched an inquiry into workplace issues surrounding the menopause. The inquiry will investigate whether women experiencing menopause are adequately protected by existing discrimination legislation, or whether it might be appropriate to change Equality Act 2010 to recognise menopause as a new protected characteristic.

In any discrimination claim, the employee will need to establish a causal link between their protected characteristic and any less favourable treatment they allege they have received.

Remember, where a dismissal is found to be ‘tainted’ by discrimination of any kind, the compensation that can be awarded by an employment tribunal will be unlimited (in contrast to ‘normal’ unfair dismissal, where compensation is capped at 12 month’s earnings).

Menopause at work: Best practice steps

If your organisation is taking its first steps to address menopause issues at work, it is best to keep things simple. Some suggestions to get you off to a great start are:

• Consider putting in place a menopause policy and consider how that will interact with the core policies you currently have (for example, capability procedures or sickness absence management policies).
• Think about possible adjustments: For example, might it be possible to relax sickness absence thresholds for staff experiencing menopause, or to adjust break times or working patterns?
• Make sure your managers and wider workforce are aware of your new policy and what you hope it may achieve. Back up your policy with training or other awareness-raising activity.
• Make sure the menopause conversation is ‘open’ for all staff, especially during discussions about capability, performance, or absence.
• Think about ongoing education. There are lots of resources available from bodies such as the CIPD or ACAS. Flag these up to your staff as an easy way to update their own knowledge.

For further insight, listen to Victoria’s podcast ‘Menopause and Employment Law’, recorded with menopause expert Dr Louise Newson and exploring all legal aspects of managing the menopause at work.