In recent months I have assisted in a case in which a worker was on the brink of dismissal for absences that were entirely attributable to her experience of menopause (thankfully averted, the dismissal that is). In another a worker was subject to a misconduct allegation for an emotional and out of character outburst that she believed was attributable to the effects of menopause. According to the NHS ‘typical’ symptoms that are likely to impact someone at work include hot flushes, sleeplessness, memory and concentration difficulties, pain, headaches, muscle pain and joint stiffness, anxiety, depression, and mood changes.
When it comes to enforcing legal rights the most common target for an complaint will be one of sex discrimination, either that a a policy or practice of the employer indirectly discriminates against women or that the treatment is because of sex.
One of the first cases to consider the menopause in the workplace was Merchant v British Telecom (2012). In that case a worker was subject to poor performance procedures, and she was ultimately dismissed because of these concerns. Her case, which was supported by medical evidence from her GP, was that that her performance was affected by her experience of menopause. However, despite the performance policy requiring any health issues raised be investigated this was not done here.
Ms Merchant complained that a material factor for her dismissal was the fact that she was undergoing the menopause and, therefore, this was direct sex discrimination. The case was successful. Menopause, like pregnancy, is inextricably linked with sex but that, in itself is not sufficient for a direct discrimination claim (which is why the Equality Act has the right not be unfavourably treated because of something arising from pregnancy and maternity which, save for disability, is not carried over into other protected characteristics – this provision is in section 18 of the Act).
The reason the claimant was able succeed was because the tribunal found that in making the decision the dismissing officer relied upon their own perceptions of menopause to differentiate how the case was treated in a way that would not have occurred for other health related submissions. On that basis a claim of direct discrimination because of sex was made out.
This was a helpful case but not especially so for two reasons. Firstly, direct discrimination cases are always hard to prove. Even though there was a difference in treatment of the claimant than would have in the same circumstances to a non-menopausal claimant this would not, in itself, be sufficient to demonstrate discrimination. There has to be evidence that the protected characteristic (sex/menopause) was a specific material factor in why the decision was taken. That will rarely happen. Secondly, in other cases the main challenge available would be an indirect discrimination challenge but here showing a disparate treatment will be very hard to do. It is possible that a worker may be harassed specifically because she is menopausal and if that is proven, as happened in A v Bonmarche Ltd (2019), this will be harassment related to sex.
In general though in terms of the main issues arising from menopause at work this lack of specific protection places them in an unhelpful position. If a person is experiencing something unfavourable because of something arising from disability, pregnancy, or maternity they have the option of a much more promising claim (unfavourable treatment arising from the protected characteristic, and in the case of disability a failure to make reasonable adjustments).
In my view there really is no good reason why the Equality Act fails to specifically provide more protection for women going through menopause as they do for disability, pregnancy and maternity – the rationale is the same. I think a worker should have the right not to be treated favourably because of the something arising from the menopause subject to an employer having a justification defence. But that is not what the Equality Act provides for.
In much the same way as many employee grievances are shoehorned into being “whistleblowing” complaints at an employment tribunal (because of the additional protections that provides in claiming automatic unfair dismissal) this lacuna is, I think, behind moves by claimants to equate the menopause with disability. This has never been tested (so far as I am aware) in an appellate tribunal or court EAT or higher) but there have been some first tier tribunal which should give union representatives some confidence in arguing that a worker experiencing difficulties at work related to the menopause should be subject to disability provisions of the ACT (and so the right not to be treated unfavourably and the right to have adjustments made for their benefit).
I am not entirely comfortable that a natural biological process that half of all citizens will experience should be categorised as disability; as I have said the real answer should be to provide express protection (perhaps through an amendment to s.18 of the Equality Act) but faced with the situation on the ground arguing disability is likely to be the best course of action to protect an individual worker’s position.
In 2018 there were two Scottish Employment Tribunal decisions that both found that a worker with menopausal symptoms requiring medical treatment were disabilities in Davies v Scottish Courts and Tribunal Service and Gallacher v Abellio Scotrail Ltd (both available on HMCTS judgment archive). In Davies the claimant won her case but in Gallacher the case was lost. There are only first tier decisions but they do show that this is a viable argument. In both cases however, it was there were also separate disabilities claimed and so the extent to which the findings were a result of a cumulative assessment is arguable.
It is here that the recent decision in a Preliminary Hearing in Donnachie v Telent Technology Services Ltd (2020) is particularly helpful although, again, as a first tier decision that is not binding on other tribunals its significance is limited. In Donnachie the question was asked as to whether “typical” symptoms of menopause could amount to a disability? The relevant answer is found in paragraph 22:
I see no reason why, in principle, ‘typical’ menopausal symptoms cannot have the relevant disabling effect on an individual. The descriptions of the potential impact of symptoms on day-to-day activities in the EHRC Code of Practice seems to me to be particularly relevant to the Claimant’s situation. I have little hesitation in concluding that the effect of her menopausal impairment on her day-to-day activities is more than minor or trivial. The range of her daily activities and her ability to undertake them when she would wish with the rhythm and frequency she once did is markedly affected as set out above.
This is a helpful decision and I think, going forward, it will be a useful one to quote from when making representations to employers who will be aware of the extra obligations imposed upon them in the case of disability but know no such additional protection is required for the menopause and related experiences. It would, I think, only be a matter of time until this issued is aired at the EAT but, for know, this will be a helpful decision to women experiencing difficulties at work related to menopause and those who assist them in this.
Unfortunately, shortly after the decision in Donnachie another Tribunal made a different decision in Lee v Chief Constable of Essex Police (2020) but that does not detract from the usefulness of the decision.
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