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A Rare Successful Appeal in Relation to Menopause Disability and Sex Discrimination Claims

on Friday, 22 October 2021.

In a recent judgment from the Employment Appeal Tribunal (EAT), it was decided that the Employment Tribunal (ET) were wrong to hold that an employee suffering from menopausal systems was not disabled under the Equality Act 2010.

A Background of the Case

Ms Rooney was employed by Leicester City Council as a childcare social worker, and she resigned from her role with effect from October 2018. According to Ms Rooney she had suffered from physical, mental and psychological effects resulting from menopause, the symptoms of which included insomnia, depression, anxiety, memory loss and hot flushes for the two years prior.

She had been prescribed Hormone Replacement Therapy, and was being treated medically.

Ms Rooney brought two claims to the ET:

  • constructive unfair dismissal including non-payment of holiday pay
  • disability discrimination (in the form of harassment and victimisation) and direct sex discrimination

In her claim form she described how she had felt uncomfortable and embarrassed at work, and felt her managers and male colleagues had been insensitive. Indeed, one of her managers had stated that he 'also gets hot in the office' when Ms Rooney mentioned she was suffering from hot flushes.

What Did the Employment Tribunal Decide?

The ET did not strike out Ms Rooney's first claim. However, it held that Ms Rooney's menopausal symptoms were not sufficiently serious to be considered a disability and her claim of sex discrimination had no reasonable prospect of success, so dismissed her second claim.

It should be noted that under s6 of the Equality Act 2010, in order for someone to be disabled under the Act, they must have a physical or mental impairment that has a substantial and long term adverse effect on their ability to carry out normal day to day activities. 'Long term' is usually considered to be 12 months or more for employment law purposes.

The Employment Appeal Tribunal Decision

Ms Rooney appealed against the dismissal and strike out of her claims, and on appeal, the EAT held that the ET had made an error in law in deciding she was not a disabled person at the relevant time, and that the ET were also wrong to dismiss her disability and sex discrimination, harassment and victimisation claims.

They noted that, in her evidence, Ms Rooney had stated both her physical and non-physical symptoms (which the ET had not rejected), and that they had failed to provide a careful factual analysis in deciding whether Ms Rooney was disabled.

The EAT also noted that any decision to strike out a claim should adequately explain to the affected party why their claims were, or were not, struck out. In this case this had not been adequately explained in relation to the sex discrimination claim strike out, nor the harassment or victimisation claim strike outs.

Ms Rooney's claims have therefore been remitted to be reconsidered by a freshly constituted tribunal.

What Is the Impact of the Decision?

This case, which is only the second involving menopause discrimination at appellate level, gives some illustration of the difficulties that have been faced by menopausal women in the workplace, and the challenges in proving that menopausal symptoms may amount to a disability.

The issue is an increasingly topical one, and as we have previously reported, the Women and Equalities Committee have recently launched an inquiry into this area to examine whether existing discrimination legislation is sufficient in preventing women from resigning as a result of menopausal symptoms.

Employers should therefore be careful to exercise care and sensitivity when dealing with similar issues in the workplace and should look out for legislative updates.

If you have any queries relating to this case, or similar issues please contact Madeleine Shields in our Employment Law team on 0117 314 5226, or complete the form below.

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