Calling menopause a disability for employment law purposes is an increasingly common argument raised at employment tribunals.

Menopause is covered under the protected characteristics under the Equality Act 2010, namely age and sex. Most notably was the case of Merchant v BT in 2012. Mrs Merchant had medical evidence confirming that her lack of concentration at work was due to menopausal symptoms. However, her line manager dismissed her for underperformance without assessing her health concerns. The tribunal judge referred to the manager’s approach as “irrational” and her claim was successful on the ground of sex discrimination.

However, recent debates and caselaw have raised the question as to whether menopause can be considered a disability, as defined in the Equality Act 2010.

Menopause is a natural stage of aging in women that marks the end of fertility and usually occurs between 45 and 55 years of age. It is caused by declining oestrogen levels.

Menopause is potentially covered under the protected characteristics under the Equality Act 2010, namely age and sex. However, recent cases have thrown light on menopause as a disability as defined in the Equality Act 2010.

We typically do not consider menopause to be a disability. However, it can have a significant effect on a woman’s ability to work and we are seeing more women acknowledge this impact. The latest UK data shows that menopause was mentioned in 16 employment tribunals in 2020, compared to only 5 in 2018 (one of those was a Hatton James Legal case).

s6 of the Equality Act 2010 says that a person is disabled if: they have a physical or mental impairment that has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities.

In recent years, women have successfully argued that they have been discriminated on the ground of disability due to menopausal symptoms. The first was a case in which Ms Davies argued that her menopause symptoms resulted in her regularly taking medicine that had to be dissolved in water. She saw that two male colleagues were drinking from her jug of water. Although the water wasn’t medicated, she was subjected to an investigation and dismissed for gross misconduct.

The tribunal ruled that she had been unfairly dismissed and was subjected to disability discrimination; they ordered reinstatement to her post, £14,000 compensation for lost pay and £5,000 for injury to feelings.

But there has been inconsistency regarding this area of the law. For example, in the case concerning Ms Rooney in which the tribunal ruled that her menopausal symptoms (sleep disturbance, poor concentration, exhaustion, night sweats, hot flushes etc) did not amount to a disability. Whereas the similar case of Donnachie went the same way as Ms Davies’s.

Conclusions

These cases are raising awareness of the reality of menopause and its impact on women. It’s clear that menopause isn’t a disability but the effects of it might amount to one if they last long enough and have a substantial effect on an employee. Cases have been decided both ways, so we expect the courts and tribunals to address the discrepancies in the law to provide clarity to employers and employees.

Practical tips for employers

It is important for employers to support the health of  employees, including women experiencing menopausal symptoms, whether menopause is a disability or not.

To avoid the risks of being taken to a tribunal, some practical tips include:

  1. Raise awareness and educate staff on the reality of menopause
  2. Create an environment of transparency to enable employees to feel safe in sharing issues that may affect their ability to work.
  3. Implement reasonable adjustments if women complain of menopause symptoms that are affecting their day-to-day activities.

Cases referred to: Ms Davies v Scottish Courts and Tribunal Service SCTS, Ms Rooney v Leicester City Council,Donnachie v Telent Technology Services Ltd

By Arfa Asif

Image used under CC courtesy of Doctor4U