Menopause: Disability discrimination - NHS

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Menopause: Disability discrimination - NHS

Published 11 November 2021

The EAT has held that an employment tribunal had not properly considered whether an employee’s menopausal symptoms amounted to a disability.

THE FACTS

Ms Rooney worked for the local authority as a childcare social worker from 2006 to 2018. After her resignation, she claimed in the employment tribunal that (among other things) she had been suffering from the effects of menopause, which amounted to a disability, and that she been discriminated against on the grounds of her disability. Her claim form stated that she had “suffered with physical, mental & psychological effects of the menopause for the last two years & suffered from severe peri-menopausal symptoms such as insomnia (causing fatigue & tiredness), light headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines & hot flushes”. She further stated “these symptoms have had a negative impact on my life as I have really struggled physically & mentally to cope. My GP has prescribed me with HRT & I am under the care & being monitored by a Consultant at a specialist Menopause Clinic”.  In an impact assessment presented to the tribunal, the claimant also referred to urinary problems and night sweats, and in tribunal she said that her symptoms led to her forgetting to attend events, meetings and appointments, losing personal possessions, forgetting to put the handbrake on her car and forgetting to lock it, leaving the cooker and iron on and leaving the house without locking doors and windows. She also spent prolonged periods in bed due to fatigue/exhaustion.

Ms Rooney also claimed sex discrimination and applied to amend her claim form to include a whistleblowing claim. This article does not cover these claims.

Ms Rooney alleged that her employer had referred her to occupational health, but that they did not meet her request that she be reviewed by a female doctor.  She stated that she felt embarrassed and uncomfortable discussing her menopause symptoms and the difficulties she was experiencing in the presence of male managers and colleagues, including in an appeal hearing, where four men were present, following a written warning for work related stress absence. She also said that, when she told her male manager that she suffered from hot flushes at work, he had said that he also got hot in the office, dismissing the fact that this was a menopause symptom. She said that her employer did not take her symptoms into account before making certain decisions about aspects of her working life (including the imposition of a written warning). She said she had suffered reduced confidence in her workplace and her abilities, and that she felt she had no option but to leave her job.  

The employment tribunal decided, at a preliminary hearing, that Ms Rooney was not disabled in relation to her menopause symptoms. Her disability discrimination claim was dismissed.  

Ms Rooney appealed successfully to the EAT.

The EAT held that the employment tribunal had erred in law in finding that Ms Rooney was not a disabled person. The tribunal’s errors were:

  • The tribunal had performed a balancing exercise, weighing up what Ms Rooney could do and noting that she was able to carry out some day to day activities, including looking after her husband (who had suffered an injury) and her mother. The tribunal should have focussed on what day to day activities she could not do, not on what she could do.
  • The tribunal had not properly carried out an assessment of whether Ms Rooney’s disabilities were “long term” (an impairment will not be a disability unless it is “long term”). Her evidence had referred to suffering severe menopausal symptoms for more than a year, and the tribunal had not rejected this evidence.
  • The tribunal had concluded that Ms Rooney’s symptoms did not have more than a minor or trivial effect on her day to day activities. However, Ms Rooney’s evidence about her symptoms and their impact on her had not been rejected by the tribunal, and no explanation was given by the tribunal as to why the effect of her symptoms was not more than minor or trivial.
  • The tribunal appeared to have based its finding that Ms Rooney was not disabled on the fact that her evidence did not entirely support her impact assessment, and also that an earlier claim form (which she applied to amend on the basis that it had been drafted by solicitors without her permission) had stated that she was not disabled. This failed to take into account the evidence that Ms Rooney had given about her symptoms and their impact and the fact that she had stated that her first claim form had been pleaded without her instructions.
  • The tribunal had found that Ms Rooney was not relying on physical symptoms of the menopause. This was inconsistent with her description of her symptoms.

The question of whether or not Ms Rooney was disabled was remitted to a new tribunal to consider.

WHAT DOES THIS MEAN FOR EMPLOYERS?

Recently menopause as a subject has been receiving increased media attention. Employers are seeing an increase in grievances and tribunal claims connected to the treatment of women with menopausal symptoms and this may increase as women become more aware of their rights. Employers should consider educating managers on dealing sensitively with employees who raise concerns connected with the menopause, and be mindful that they may have an obligation to make reasonable adjustments. They should be made aware of the potential for claims of discrimination arising from a disability, particularly where menopausal symptoms may have an impact on performance or attendance. Claims around menopause may also potentially be made under current sex or age discrimination legislation.

The Government recently outlined action to support menopausal women in the workplace. This includes an inquiry on menopause and workplace issues by the Women and Equalities Committee. The inquiry will scrutinise the existing legislation and business practices regarding menopause and the workplace. The Committee wants to understand whether current legislation goes far enough to support women experiencing menopause at work or whether targeted legislation is required. In England a new menopause taskforce has also been established to encourage a fast and coherent approach to improved support for those experiencing the menopause.

Also, the NHS electronic staff record (ESR) team, NHS England and NHS Improvement have recently developed a guide on recording menopause related sickness. The guidance includes step-by-step instructions on how to record menopause related absence to help HR colleagues and ESR users.  This is available through the NHS employers website.

Ms M Rooney v Leicester City Council EA 2020 000079 DA and EA 2021 000256 DA

Authors

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Joanne Bell

Joanne Bell

Manchester

+44 (0) 161 934 3179

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