An individual can claim protection from discrimination under the Equality Act 2010 if they can satisfy the employment tribunal that they have a disability. This test will be satisfied if an individual can prove that they suffer with a ‘physical or mental impairment’ that has a 'substantial' and 'long-term' negative impact on their ability to undertake normal day to day activities.
Menopause generally impacts women between the age of 45 and 55 and can cause a range of physical and psychological symptoms, such as insomnia, headaches, fatigue, depression, and anxiety.
The current position
Although menopause is not a specified protected characteristic under the Equality Act 2010, individuals who suffer discrimination as a result of their menopausal symptoms may be able to claim protection under the Equality Act under another protected characteristic, such as age, sex or most commonly, disability.
There have now been a number of cases in the employment tribunal where individuals have satisfied the disability test as a result of their menopausal symptoms. In the case of McMahon v Rothwell (2019), the claimant suffered with several severe menopausal symptoms which began to significantly affect her day to day life, both at work and at home, such as stomach cramps, joint aches, night sweats and general fatigue. In the case of Evans LLP and Donnachie v Telent Technology Services Ltd (2020), the claimant described her menopausal symptoms as ‘intrusive and disruptive’.
Specifically, the claimant in this case experienced hot flushes, palpitations and feelings of anxiety which would often keep her awake throughout the night. In both cases, the tribunal found that the claimant’s menopausal symptoms satisfied the disability test however, found that there was no connection between their disability and the detrimental treatment they had alleged against their employers.
The most significant decision is the employment appeal tribunal’s decision in the case of Rooney v Leicester City Council. The finding of this case was that the employment tribunal had wrongly decided that the claimant, who had been experiencing menopausal symptoms similar to those above, was not disabled in the first instance. This case is the most widely accepted and is often relied upon in the employment tribunal today.
Impact in the workplace
In 2019, Health Care Specialists, BUPA and the Chartered Institute for Personnel and Development undertook a survey which found that three in five menopausal women were negatively affected at work because of their menopausal symptoms and that almost 900,000 women in the UK left their jobs because of the impact of the same. One comment made was that this statistic may well contribute to the gender-pay gap given that women could be exiting businesses at the ‘peak’ of their experience at a time where they could well be eligible for senior management roles.
In addition, in recent years, there has been a clear increase in menopause related employment tribunal claims. For example, in 2021 employment tribunal claims related to menopause increased by 44%, compared to 2020.
What employers should do
Employers should ensure that they are proactive in raising awareness amongst staff, particularly managers, to improve their knowledge and understanding of menopause. This could involve providing training and updating their policies with a view to communicating to staff what menopause is, when it occurs and what impact it can have upon individuals.
Employers should also ensure that they have open and honest conversations with individual staff members who are suffering with menopausal symptoms to better understand what adjustments can be put in place to manage symptoms in a secure and sensitive way.
If you feel that you have experienced discrimination in the workplace, if you require advice regarding any employment dispute, or if you require HR assistance, and would like more information, you can speak to a member of our employment and discrimination team on 0161 696 6170.