Rooney v Leicester City Council EA/2020/70 and EA/2021/256
The claimant worked as a childcare social worker prior to her resignation. She later submitted a claim for constructive dismissal and unpaid holiday pay, overtime and expenses. She subsequently presented a second claim, for disability and sex discrimination, harassment and victimisation relating to the council’s treatment of her regarding her menopausal symptoms.
The claimant said that she had suffered from the physical, mental and psychological effects of the menopause for two years. Her symptoms included insomnia, light-headedness, stress, depression, anxiety, palpitations, memory loss, migraines and hot flushes. She had been prescribed hormone replacement therapy and was under the care of a consultant at a specialist menopause clinic. A request to her employer that she was reviewed by a female occupational health doctor had not been granted. She had also indicated that she felt uncomfortable and embarrassed discussing her menopause symptoms in the presence of male managers and colleagues.
Following a preliminary hearing, the employment tribunal held that the claimant was not suffering from a disability in relation to her menopause symptoms, anxiety and depression. Her disability discrimination claim was dismissed, in addition to her claims of harassment and victimisation.
The claimant appealed to the EAT.
The EAT has allowed the appeal and remitted the claims to be reheard by a different tribunal.
The tribunal had been wrong in its approach by weighing up what the claimant could do in the way of day-to-day activities against what she could not do. It had failed to properly consider the statutory definition of ‘long-term’ for the purposes of establishing disability, and it had been wrong to conclude that the menopausal symptoms had no more than a minor or trivial effect on her day-to-day activities.
The tribunal’s finding that she was not relying on physical symptoms of the menopause as amounting to a disability was inconsistent with the claimant’s own evidence of her symptoms, which included hot flushes, sweating, palpitations, night sweats, fatigue, urinary problems and headaches. Her evidence suggested that the physical impairments had both a substantial effect on her day-to-day activities and they were long-term.
Consequences of this decision
The case will now be heard by a different tribunal, so we do not yet know whether the claimant’s substantive claims will be upheld.
The EAT’s decision means that employers should not assume that menopausal symptoms cannot constitute a disability under the Equality Act 2010. It will depend on the both the severity and duration of the symptoms suffered by a menopausal woman. The EAT was satisfied from the evidence in this case that the claimant had met the hurdle for establishing a disability.
In July 2021, the Commons Women and Equalities Committee launched an inquiry into menopause and the workplace, which includes an examination of existing discrimination legislation and workplace practices. It will draw up recommendations for addressing gender equality and consider whether further legislation is required. The inquiry closed on 17 September 2021 and its report is awaited.
These articles are from the October 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact a member of Birketts' Employment Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at October 2021.