In recent years, there has been an increase in discussion and awareness surrounding the impact of Menopause in the workplace. In its analysis of Tribunal records, the Menopause Experts Group found that the number of Tribunal claims related to Menopause increased by 44% in 2021 compared to 2020. Employers therefore need to be aware of potential discrimination claims which may arise, because of their treatment of those experiencing Menopause.
According to the NHS, menopause symptoms can include mood changes, anxiety, memory issues, headaches, palpitations, skin changes and sleeping difficulties.
How could a claim arise?
The UK government has confirmed that it does not intend to make any Menopause-related changes to the Equality Act 2010, including making Menopause a protected characteristic. However, depending on the facts, those experiencing menopausal symptoms may instead be able to bring separate discrimination claims related to the existing protected characteristics of age, disability or sex.
Recent significant case
The most significant decision is the Employment Appeal Tribunal’s decision in the case of Rooney v Leicester City Council. The case involves the first Employment Appeal Tribunal decision that menopause symptoms can amount to a disability for the purposes of the Equality Act 2010, setting a legal precedent.
Maria Rooney was suffering from menopause symptoms, as well as anxiety and depression, when she took periods of extended sickness leave from her job as a social worker for Leicester City Council in 2017 and 2018.
Ms Rooney received a formal warning from her employer over her absences, despite her disclosing the menopause symptoms she was suffering. Ms Rooney also says she received unfavourable treatment related to her absences including inappropriate comments about her menopause symptoms.
Ms Rooney felt she had no choice but to resign in October 2018and in January 2019, she lodged claims with the Employment Tribunal against Leicester City Council.
In February 2022, an earlier Employment Appeal Tribunal concluded that Ms Rooney was disabled at all material times covered by her claims, by virtue of her symptoms of Menopause combined with stress and anxiety symptoms.
On 2 October 2023, Leicester Employment Tribunal began hearing the claims that Ms Rooney was discriminated against, harassed and victimised by her employer Leicester City Council on the grounds of disability and sex.
Every employer should take note of this hearing.
Employer’s knowledge of menopause as a disability
An individual can claim protection from discrimination under the Equality Act 2010 if they can satisfy the employment tribunal that they have a disability. This test will be satisfied if an individual can prove that they suffer with a ‘physical or mental impairment’ that has a ‘substantial’ and ‘long-term’ negative impact on their ability to undertake normal day to day activities.
An employer cannot be liable for disability discrimination unless it knew, or should have known, about the employee’s disability. However, an employer may not need to know about an employee’s disability to indirectly discriminate against them.
Research has shown that women experiencing Menopause can be wary of speaking to their employer about their symptoms and any issues these symptoms are causing at work because they are embarrassed and fear they will not receive sufficient support.
In the context of a disability discrimination claim, an employee’s reluctance to discuss menopause symptoms and any associated difficulties openly with their employer might lead to a finding that an employer did not have actual or constructive knowledge that the employee was disabled at the relevant time, even if the employee’s symptoms satisfy the definition of disability in section 6(1) of the Equality Act 2010.
However, this does not mean that employers can avoid the risk of Menopause-related disability discrimination claims by avoiding open conversations with staff about menopause-related issues to ensure that they do not acquire any knowledge of disability.
What can Employers do?
Employers should support their employees who are affected by the Menopause and may have a duty to make reasonable adjustments such as ventilation and access to suitable toilet facilities where Menopause symptoms are significant and may be a disability.
Employers should stick to best practice which includes training managerial staff to ensure they are familiar with the symptoms of Menopause and are able to deal with issues appropriately and sensitively.
Employers should also consider reviewing relevant policies such as sickness and performance-related policies to consider whether adjustments are required to take account of the impact of the Menopause.
ACAS guidance recommends that employers should implement a Menopause Policy which sets out how staff can raise issues relating to Menopause and how these will be handled by the employer.
