The Employment Appeal Tribunal has only ever heard two cases in this space. Most recently they dealt with the second case that’s come before them where essentially they told the lower Tribunal off for failing to recognise the employee’s disability and potential sex discrimination claims. The case involved Leicester City Council and a social worker who was claiming constructive unfair dismissal, disability discrimination and sex discrimination. Her claim centred around the Council’s treatment of her in relation to her menopausal symptoms.
In her claim she described suffering from physical, mental and psychological effects of the menopause for a 2 year period. This included insomnia – causing fatigue and tiredness, light-headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines and hot flushes. These had a negative impact on her life to the extent that she struggled physically and mentally to cope, had been to her GP who prescribed hormone replacement therapy and was under the care of a consultant at a specialist menopause clinic.
The employer had referred her to Occupational Health but were unable to meet the request that she be reviewed by a female doctor. The employee felt embarrassed and uncomfortable discussing her symptoms and the difficulties she was experiencing in their presence and in particular she had had a work related warning for her absence levels and at appeal, four men were present to make the decision. She described how when she had advised a male manager that she was suffering from hot flushes in the office, he had said he also got hot in the office, dismissing this as a menopause symptom.
The legal issues in the claim were more about the Tribunal having not applied the right level of detail to the explanation of their findings. The case still illustrates a number of key points:
- That the menopause and menopause related symptoms can meet the definition of disability under the Equality Act as regards a physical or mental impairment which has a substantial and long term adverse effect on somebody’s ability to carry out normal day to day activities.
- The need for employers have their antenna looking to spot in performance cases or cases where they are managing absence levels, whether there may be an underlying issue such as the menopause and the need, where there is, to use normal processes, and ensure further advice is obtained rather than ploughing on regardless, dismissing the issue as ‘just sickness absence’.
- When referring somebody to Occupational Health, it would be respectful, to abide with an employee’s wishes to enable them to see a female Dr if they want. A rule that they had to see whoever was available may be indirectly discriminatory and you would need to think carefully about whether you could justify such a requirement or whether it’s actually going to be seen as a separate act of harassment or victimisation if you fail to be flexible on this.
- It’s important to train managers so that they are aware of the menopause and don’t belittle it or think it can’t affect some people. We have a one-hour training session that we are able to provide on this subject area, if you are interested.
Interestingly, the Institution of Occupational Safety and Health has, as part of its response to the Parliamentary Enquiry that is currently going on into the issue of menopause in the workplace, made a number of recommendations including that employers need to take a more holistic view and put the spotlight on effective management practices and practical support. The Parliamentary Enquiry which launched in July of this year will consider, for example, whether it would be necessary to elevate menopause as a stand-alone disability like cancer under the Equality Act so that it gets the recognition it lacks at the moment.
Refreshing Law Ltd
15 October 2021