Menopause as a Disability: Employment Tribunal Practice and Procedure

Rooney v Leicester City Council EA-2020-000070-DA and EA-2021-000256-DA

Since our recent article on the menopause (found here), a new Employment Appeal Tribunal (EAT) decision has explored the conduct of Tribunals when assessing menopause as a disability.

What constitutes a disability under the Equality Act 2010 (EqA)?

Under the EqA a person has a disability if:

• They have a physical or mental impairment; and
• The impairment has a substantial and long-term (i.e. it has or is likely to last for at least 12 months or for life) adverse effect on their ability to carry out normal day-to-day activities.

With the symptoms of menopause including hot flushes, sweats, difficulty sleeping, headaches, anxiety, joint stiffness and palpitations, it is likely that, in certain cases, this will meet the test for disability in law.

What are the facts of the case?

The Claimant, Ms Rooney, worked for Leicester City Council as a social worker until her resignation. Following her resignation, Ms Rooney brought a claim for constructive dismissal, but the claim form included an acceptance from her solicitors that her menopause symptoms did not amount to a disability under the EqA.

Ms Rooney then presented a second claim for disability and sex discrimination, harassment and victimisation in relation to her menopause symptoms, which she claimed had been ongoing for two years and included insomnia, fatigues, confusion, light-headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines and hot flushes. Ms Rooney highlighted the negative impact this had on her life, that her GP had prescribed hormone replacement therapy and that she had been referred to a consultant at a specialist menopause clinic.

What did the Tribunal decide?

At a preliminary hearing Ms Rooney applied to remove the statement in her claim form that conceded that she was not disabled. The Tribunal subsequently held at a second preliminary hearing that Ms Rooney did not have a disability and her claims were struck out.

Ms Rooney appealed to the EAT.

What did the EAT decide?

The EAT held that the Tribunal erred in law in deciding Ms Rooney was not disabled, and striking out her discrimination claims, without sufficient analysis and or providing sufficient reasons for the decision.

The EAT based this decision on the Tribunal erring in:

• Balancing what Ms Rooney could and could not do from day to day (which contradicted previous case law);
• Failing to consider the meaning of ‘long-term’ under the EqA in assessing whether Ms Rooney was disabled;
• Deciding that Ms Rooney’s menopause symptoms did not have more than a minor or trivial effect on her life;
• Finding that Ms Rooney was not disabled based on the fact that the medical evidence did not support her impact statement and the fact that her original claim stated that she was not disabled;
• Finding that there was nothing to suggest that Ms Rooney’s physical symptoms were long-term or had a substantial effect on her day-to-day activities.

The EAT also upheld the appeal against the strike-out of the sex discrimination, harassment and victimisation claims.

The case is yet to be redecided by the Tribunal.

What can Employers do to Address Menopause in the workplace?

This decision highlights the impact that the menopause can have on workers and indicates that there is limited legal precedent for cases in this arena.

Websites such as Unison and ACAS provide useful tips for employers, such as:

• Implementing flexible working to include comfort breaks throughout the day;
• Providing greater support from line management;
• Maintaining a clear and up to date policy on menopause;
• Ensuring easy access to facilities; and
• Implementing reasonable adjustments where there is a negative impact on the employee’s working life.

Employers should aim to keep up to date with any developments in the current Parliamentary Inquiry and may consider seeking legal advice on policies and best practice when dealing with menopause in the workplace.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Rachael Lloyd or Tegan Osborne-Brown to discuss any issues you are facing.