Menopause and Discrimination in the workplace

As menopause in the workplace is becoming a much-discussed topic, it is essential that employers are aware of it, in order to help individuals who are experiencing it. Failing to protect individuals who are experiencing menopause can have serious consequences for employers. In particular, it may lead to unfair dismissal claims and claims relating to discrimination, such as in the case we discuss in this blog.

A recent Tribunal appeal has affirmed a growing trend that menopause can amount to a disability. In this case, Ms Rooney brought a claim against her employer alleging disability, sex discrimination, harassment and victimisation. In relation to the disability discrimination, she argued that her menopause symptoms had a substantial adverse effect on her ability to carry out normal day to day activities and thus amounted to a disability. These symptoms included: hot flushes, sweating, heart palpitations, anxiety, night sweats, sleep disturbance, fatigue, poor concentration, urinary problems and headaches.

At first instance, the Employment Tribunal concluded that Ms Rooney was not a disabled person and therefore struck out her claim. However, on appeal, the Employment Appeal Tribunal made the following observations:

• Firstly, the Employment Tribunal held that as she was able to continue her caring responsibilities outside of work, she could not be disabled, however, the Employment Appeal Tribunal found that just because an individual has caring responsibilities towards others outside of work and is able to perform that role, does not mean that they cannot be disabled.
• Secondly, the Tribunal were wrong to conclude that Ms Rooney’s menopausal symptoms did not have more than a minor or trivial effect on her day to day activities. In particular, Ms Rooney had given evidence that her symptoms led to her forgetting to attend events, appointments, losing personal possessions, leaving the cooker and iron-on, leaving the house without locking doors and windows, spending long periods in bed due to fatigue and exhaustion, experiencing dizziness, incontinence and joint pain. It was held that there was no explanation as to how the Tribunal concluded that this did not demonstrate an effect on Ms Rooney’s day to day activities.
• Finally, the Tribunal stated that taking Ms Rooney’s evidence of her symptoms and the effect these had on her over a period of time, the original decision was erroneous to conclude that the impairments were not long-standing.

Alongside this recent increase in case law on the topic, the House of Commons Women and Equalities Committee has launched an inquiry into existing discrimination legislation and workplace practices around menopause. The inquiry is seeking to address whether the current legislation does enough to protect individuals experiencing menopause from discrimination in the workplace. As seen above, employees are often left having to claim disability discrimination and these claims will not always be successful. The chair of the Committee expressed that making menopause a protected characteristic in its own right should not be ruled out. The inquiry closed on 17 September 2021 and the response is eagerly awaited.

Regardless of whether any legislation is enacted, it is clear from this case that the topic of how to sensitively manage the effects of menopause in the workplace is here to stay. It needs to be carefully considered by employers, and there is a range of steps that employers can take to better protect individuals experiencing the side effects of menopause. These measures include:

• Introducing a menopause policy, setting out how the employer intends to deal with workplace issues relating to menopause and creating a level of clarity for employees. It should also encourage open discussions between employees/ workers and help to educate staff about the topic.
• Undertaking risk assessments addressing the specific needs of those experiencing menopause in order to assess what adjustments should be made.
• Giving support and making adjustments, such as introducing flexible working.

If you are unsure about whether you are adequately protecting employees experiencing menopause, then contact a member of our expert employment law team.

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