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Monday, November 8, 2021
Employment Appeal Tribunal – Disability Discrimination Case: Menopause at Work
In a recent EAT hearing the Tribunal held that an employer maintaining a salary at an original higher rate for a lower salaried position was not a reasonable adjustment.
Local Authority childcare social worker, Ms. Rooney suffered from classic, debilitating, menopausal symptoms which included anxiety, sleep disturbance, fatigue, difficulty in concentrating, hot sweats and palpitations.
Having raised this with the council’s HR department she was referred to occupational health but unfortunately there were no female doctors, she did not attend OH. As the symptoms did not improve Ms Rooney signed off sick which subsequently triggered the council’s absence management policy leading to a written warning. A short while after this Ms Rooney resigned.
Multiple claims were brought against the council by Ms Rooney of which one referred to disability discrimination. At the initial tribunal Ms Rooney lost her case as the ET held that the menopausal symptoms did not constitute a disability. Ms Rooney understandably appealed and at the EAT the view was somewhat different. The symptoms reported by Ms Rooney were consistent with that of a disability given the severity of the condition, the physical impact on her and her job.
Takeaway Note
Our understanding of the extent of menopausal symptoms is growing and, in many cases, it should indeed be considered a disability. Now would be a very good time to bring your team up to date with the array of symptoms the menopause can present and the measures you can put in place to support women who may be unfortunate enough to suffer badly enough and long enough to impact their work over a sustained period. This test of capability is one that should be undertaken sensitively and professionally with the employee’s wellbeing at the heart of the matter.
Steps you can take to assist an employee in these circumstances can include greater flexibility in working such as location and hours to accommodate times of particular discomfort.
In the above case the council did not technically fail to fulfil their procedural and internal compliance protocols but where they did drop the ball was in failing to understand the importance of aiding the employee with access to a female medical practitioner. This clearly led to a breakdown in the relationship.
Maintaining an open and supportive dialogue with an employee should be the aim in all such cases. Without a trusted channel for communications, breakdowns and disputes will be more frequent.
Caroline Nokes, the chair of the women and equalities committee, has suggested that menopause could become an additional protected characteristic under the Equality Act (as pregnancy and maternity are).
Written by Robert Gibson, Senior Consultant - Employment Law
Robert is a Senior Consultant at Samuel Phillips and specialises in employment and business matters. He advises in relation to employment and shareholder disputes, including pensions and related issues.
