Menopause classed as a disability under Equality Act 2010
Whilst the menopause is not automatically classed as a disability under the Equality Act 2010, it has the potential to be one if it is seen to be a physical or mental impairment which has a substantial and long-term adverse effect on an employee’s ability to carry out normal day-to-day activities. In a recent case, Rooney v Leicester City Council, the Employment Appeal Tribunal (EAT) found that the Employment Tribunal (ET) had erred in striking out claims of sex and disability discrimination due to the menopause. The claim has been remitted back to ET for fresh consideration of the issues.
In this case, Rooney started her role as a childcare social worker in August 2006. In 2017, she started to experience menopausal symptoms, so had several periods of sickness absence. Rooney felt that the management of her absences by her employer, Leicester City Council, was insensitive and heavy-handed, which led to her resignation in 2018.
Rooney raised two separate tribunal claims: first for constructive dismissal, non-payment of holiday and overtime, and reimbursement for expenses. She then appointed a new solicitor and submitted a second claim form asserting disability and sex discrimination on the grounds of her disability due to the menopause. Symptoms of severe perimenopause she outlined include insomnia, confusion, stress, depression, anxiety, memory loss, migraines and hot flushes. She said that she was not comfortable attending an occupational health consultation with a male doctor and that the managers who met with her were all males, so didn’t take into consideration her individual circumstances and were very insensitive. Rooney produced a full disability impact statement to the employment tribunal to summarise the alleged direct disability and sex discrimination she experienced.
The ET summarised that her symptoms resulted in her forgetting to attend events and appointments; losing personal possessions; not locking her car, front door or windows; and leaving the cooker and iron on. She also spent prolonged periods in bed due to fatigue/exhaustion, as well as experienced dizziness, incontinence and joint pain. However, they dismissed Rooney’s claim of disability discrimination saying that her medical conditions did not amount to a disability. They also stated that any impairment was not long-standing, but this was unsupported by any reasoning. In the evaluation of her disability discrimination claim, the EAT found that there was no explanation as to how the Tribunal concluded that Rooney’s evidence, which it did not reject, did not demonstrate an effect on day-to-day activities that was more than minor or trivial. The EAT also stated that the ET erred in focussing on the things that Rooney could do and did not weigh this against what she could not do.
Similarly, the ET struck out Rooney’s sex discrimination claim saying that it had no reasonable prospect of success. They came to the conclusion that Rooney relied on her embarrassment about discussing her menopausal symptoms with men, but that no comparator (real or hypothetical) were suggested. The ET said that the claim appeared to be an “add-on” without any substance. But, the EAT found that the ET’s decision to dismiss the sex discrimination claim fails to comply with the fundamental requirement to explain to the claimant why her appeals were struck out and did not take into consideration the employee’s claims as clarified in the Scott Schedule.
It's important for organisations to remember than any medical condition has the ability to be protected against discrimination if it meets the criteria of being a disability. However, successful claims for constructive dismissal and unfair dismissal can still occur even where there is no disability, if the employee is subject to unfavourable treatment.