18th October 2022
World Menopause Day marks almost three months since the Women and Equalities Committee recommended the government immediately commence a consultation on, among other things, adding the menopause to the list of characteristics protected from discriminatory acts under the Equality Act 2010
The government hasn’t formally responded, although a consultation seems unlikely. Just ten days earlier, the government responded to a separate report concluding that the Equality Act already sufficiently protects women going through the menopause. While the menopause is not a protected characteristic, the government concluded that employees going through the menopause are sufficiently covered by the Act’s protection against discrimination and harassment on the grounds of age, disability and sex.
While this is true to an extent – some employees suffering menopausal symptoms have succeeded in establishing less favourable treatment and/or harassment due to age, disability and/or sex - this article explores the limits of the current legislative protections through a recent case on disability discrimination. Our Employment experts Charlotte Smith, Adam Melling and Lauren Owens look at the key considerations for employers and what they should be doing now.
Ms Rooney worked as a social worker for Leicester City Council. In January 2019, she brought two claims against the Council, including a claim for disability discrimination. She alleged suffering from the physical, mental and psychological effects of the menopause for two years, including insomnia, fatigue, confusion, stress, depression, anxiety, memory loss and forgetfulness, migraines and hot flushes.
Under the Equality Act, a person is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. “Substantial” means “more than minor or trivial”; “long-term” means the effect must have lasted, or be likely to last, for at least 12 months.
The employment tribunal determined that Ms Rooney was not disabled. The Employment Appeal Tribunal held that the employment tribunal had erred in law and sent the case back to the employment tribunal for reconsideration. For present purposes, the point to note is that the Employment Appeal Tribunal found there to be substantial evidence – seemingly ignored by the tribunal at first instance – pointing towards Ms Rooney’s menopausal symptoms amounting to a disability.
However, just because it is possible, is shoehorning the menopause into age, disability and/or sex discrimination fit for purpose?
The obvious issue which hinders all three is that they are being used for convenience, in the absence of a more appropriate protected characteristic. Just because they can and have been used by creative litigants and lawyers, doesn’t mean they will produce the correct result all of the time. The limitations of the existing protections are exacerbated by the fact that the menopause affects employees at different ages, for different lengths of time, and to varying degrees.
Take age and sex, for example: the menopause is not a unifying trait of all people of a certain age, or sex. Instead, broadly speaking, it affects people of a particular sex in a relatively broad age range. In other words, and as the judge concluded in Bonmarche, the comparator to whom the employee is treated less favourably is an employee who is not a female of menopausal age. Claimants would therefore be on a stronger footing if section 14 of the Equality Act was brought into force. Section 14 was intended to catch discrimination based on a combination of protected characteristics (such as age and sex). It’s never been brought into force and the government recently confirmed it has no intention of doing so. This nuance wasn’t considered in Bonmarche and the claimant succeeded in showing less favourable treatment on the grounds of both age and sex by relying on a combination of those two characteristics.
Even then, two women of the same age going through the menopause may be treated completely differently because of contrasting menopausal symptoms. Put simply, Woman A is not treated less favourably to Woman B (or Man C) because of her age and/or sex – it’s because of the unprotected characteristic of the menopause and/or its symptoms.
Disability discrimination, therefore, may be more appropriate, given that the focus is on the individual’s physical and mental condition (their ability to carry out normal day-to-day activities) as opposed to a medical diagnosis. A finding of disability also fits in with the duty to make reasonable adjustments.
However, the statutory definition of disability will clearly still be a bar to many experiencing menopausal symptoms, particularly if such symptoms are intermittent. Many women may also be deterred from pleading disability discrimination because, in doing so, they face the prospect of having to evidence – and be cross-examined on – the physical and mental effects in a public hearing, as well as listen to the other side assert that the symptoms are minor or trivial (so as not to amount to a disability). Where many with disabilities often avoid the embarrassment of having to explain the extent of their disability because their employer accepts that the individual is disabled, this is not usually the case with the menopause.
Broadly speaking, employers must ensure the health, safety and welfare of their workforce while at work and undertake suitable and sufficient assessments of workplace risks to meet that obligation.
However, despite Acas producing guidance on menopause-based risk assessment , the Women and Equalities Committee heard evidence that employers do not necessarily appreciate that the menopause is a health and safety issue.
To add to this, a breach of health and safety law is generally a matter for the Health and Safety Executive – individual members of staff can’t bring claims in the courts or employment tribunal directly for compensation.
Without reform, workers may still succeed in a claim against their employer under the existing discrimination legislation. However, a primary driver for employers should be that it’s well established that diversity of thought and good staff relations are key pillars to a successful business. Despite this, recruitment and retention of women going through the menopause is a systemic problem.
Employers should therefore focus on supporting individuals, rather than coming at it from the angle of whether or not they need to make reasonable adjustments as a matter of disability discrimination law or to comply with health and safety regulations.
Support might include:
Our team of specialists provides advice on complex employment, HR and business immigration matters to private and listed companies operating in a broad range of sectors, including manufacturing, food and drink, technology, sport, retail, healthcare and education. Please contact Charlotte, Adam or Lauren if you need advice or assistance.
 Women and Equalities Committee, Menopause and the workplace (28 July 2022)
 A v Bonmarche Limited (in administration), 4107766/2019 (age and sex discrimination and harassment); Donnachie v Telent Technology Services Ltd, 1300005/2020 (it was determined at a preliminary hearing that an employee’s menopausal symptoms amounted to a disability for the purposes of the legislation).
 Rooney v Leicester City Council, EA-2020-000070-DA and EA- 2021-000256-DA
Employment & Sport
Employment & Sport