A number of recent tribunal cases has highlighted the need for employers to be aware of potential discrimination claims that may arise if women experiencing menopausal symptoms are not treated fairly in the workplace.
In light of these recent employment tribunal claims, Michael Shroot, chief executive officer at Woodcocks Haworth & Nuttall Solicitors and a solicitor specialising in employment law, explores how increasingly important it is for employers to consider how they treat women with menopause particularly due to the interaction of ‘menopause’ to claims for disability and sex discrimination.
What is menopause?
The menopause is a natural part of ageing in women, and usually occurs between 45 and 55 years of age as a woman’s oestrogen levels decline. Most women will experience menopausal symptoms which can be both physical – including hot flushes, heavy periods and headaches – as well as psychological symptoms, including memory loss, confusion and depression.
The symptoms vary in severity but can have a significant impact on a woman’s day-to-day activities and the ability to perform to usual capacity in the workplace. In some cases, adverse symptoms may lead to menopause becoming a disability for the worker.
Recent tribunal cases relating to menopausal symptoms
For the purpose of a disability discrimination or sex discrimination claim, there is now much clearer guidance as to how menopausal women can establish that their symptoms amount to a disability.
The five cases summarised below highlight this point:
- Rooney v Leicester City Council ET2600242/2019 and 2600243/2019: Ms Rooney experienced many menopausal symptoms including hot flushes, palpitations and anxiety, night sweats and sleep disturbance, fatigue and poor concentration. Her symptoms led to numerous occasions where she would forget to attend important work appointments as well as failing to remember to do even menial tasks such as locking the house or turning off the cooker. She also spent prolonged periods in bed due to fatigue and exhaustion. However, an employment tribunal did not accept that Ms Rooney’s symptoms had a substantial adverse effect on her ability to carry out normal day-to-day activities. In October 2021, The Employment Appeal Tribunal (EAT) overturned the decision, holding that the tribunal had erred in law when determining that at the relevant time, Ms Rooney was not disabled. Ms Rooney’s claim was forwarded to be considered by a differently constituted tribunal.
This particular case demonstrates that depending upon the circumstances, menopause tribunal claims will now be considered as a dual claim of disability discrimination alongside sex discrimination cases. - Donnachie v Telent Technology Services Limited ET/13000005/20: An Employment Tribunal did accept that ‘typical’ menopause symptoms could amount to a disability.
- Merchant v BT Plc ET/140135/11: Despite previously giving her manager a letter from her doctor explaining that she was “going through the menopause which can affect her level of concentration at times”, Ms Merchant was dismissed following a final warning for poor performance. The tribunal upheld her claims of direct sex discrimination and unfair dismissal.
- A v Bonmarche Ltd (In administration) ETS/4107766/19: Ms A worked in retail for 37 years as a high achiever. Her situation changed when she began to go through the menopause. Her male manager would humiliate her in front of other staff as well as demonstrating other numerous negative reactions to her condition. She suffered a breakdown and after receiving little support from her manager on her return to work, resigned. The tribunal upheld her claims for sex and age harassment.
- Best v Embark on Raw Ltd ET/3202006/2020: An employment tribunal held that an employer violated an employee’s dignity and created a humiliating environment for her at work by tactlessly asking her whether she was menopausal after she had made it clear that she did not want to discuss the topic.
Are menopause policies a legal requirement?
There is currently no legal requirement to have a menopause in the workplace policy or to provide guidance to protect employees experiencing menopausal symptoms.
But, in many organisations, menopause has the potential to impact 50 per cent of the work force. With an increasing number of women working into their 50s and beyond, it is evidently an issue that will become more prominent in the future.
As an obligation to protect an employee’s health and wellbeing in the workplace, and to ensure that female workers are not discriminated against during menopause, it is highly recommended that employers consider putting together a specific menopause at work policy and treating absences and illness caused by menopause like any other disability.
This is important not only to avoid expensive employment and often time-consuming tribunal claims, but even more importantly, it is the duty of every employer to protect the wellbeing of employees and to ensure they can carry out their work in a safe and non-discriminating environment.
Michael Shroot is WHN’s chief executive officer and head of WHN’s employment law team. Michael has specific expertise in employment law, shareholder, director and contract disputes. He is a member of the Employment Lawyers Association.
If you need help on such a matter, please contact Michael on 0161 761 8087 or by email michael.shroot@whnsolicitors.co.uk
