The Employment Appeal Tribunal (EAT) consideration of the case Ms M Rooney v Leicester City Council, a decision issued shortly before World Menopause Day on 18 October 2021, highlights the importance of employers carefully considering this question.
Facts
Mrs M Rooney (MR), a childcare social worker with Leicester City Council, resigned and brought claims of unfair dismissal, sex and disability discrimination, relying on menopause as her disability.
MR endured a number of menopausal symptoms ranging from hot flushes, sweating and irritability to insomnia, fatigue, stress, depression, anxiety, palpitations, joint pain, memory loss, confusion, poor concentration, migraines, light-headedness and urinary problems. These symptoms often left MR bed ridden, mentally and physically unable to manage them and her work.
MR believed a number of her employer’s actions were discriminatory, including:
- a failure to consider reasonable adjustments;
- insensitive comments made about her hot flushes in the office;
- issuing a formal written warning for menopause related sickness absence;
- in an appeal (against the written warning) having an exclusively male panel and refusing to ensure a female doctor provided the Occupational Health assessment.
The Employment Tribunal (ET), although accepting MR had an impairment, did not accept she was disabled for the purposes of section 5 the Equality Act 2010 (EQA) finding the impairment didn’t have a substantial, long-term negative effect on her ability to carry out normal day-to-day activities. MR appealed to the EAT.
Law
The Equality Act 2010 section 6(1) provides that a person has a disability if:
- They have a physical or mental impairment; and
- The impairment has a substantial and long-term adverse effect on the ability to carry out normal day to day activities.
Decision
The EAT disagreed and took issue with the ET’s lack of reasoning and the focus on what could be done by MR, contrary to the required approach in analysing the impact on day-to-day activities i.e. what MR cannot/finds it difficult to do.
The matter was sent to be heard by a new ET to rule upon whether MR was a disabled person after careful factual analysis. The decision makes quite clear that the ‘ordinary’ menopausal symptoms suffered by MR are capable of amounting to a disability for legal purposes, potentially triggering obligations to make reasonable adjustments and avoid harassment.
Comment
Katherine Irvine, an Associate, in our Employment team commented:
“This case highlights the difficulties menopausal women face in the workplace, and that more awareness is needed to minimise the risk of actionable discrimination.
“Not all menopausal women will experience such severe symptoms or meet the definition of ‘disabled’ under the Equality Act. As in RM’s case though, symptoms and effects can often be faced with a lack of understanding or willingness to accept the severity and impact for the sufferer.
“Simply viewing the consequences of such symptoms as absence or performance management issues, rather than being alert to the issues at play can lead to discrimination claims and potentially uncapped compensation awards.
“Employers can take a number of steps to reduce and manage risk, such as training to increase awareness of the symptoms and effects of the menopause and offering support to affected staff. Such support might include allowing personalised temperature control in the workplace, reviewing uniform requirement or adjustments to absence triggers. Many workplaces are introducing their own Workplace Menopause Policy and Acas has produced useful guidance – further information here.”