menopause discrimination.

menopause in the workplace

Menopause is a hot topic in the workplace (forgive the pun!) not least because it impacts half of the working population. It is also because of the increased social awareness of issues arising from menopause which have featured heavily in the press and media in recent years.

The Fawcett Society says 10% of women in their survey left work during menopause because unable to work.

ACAS guidance on managing the menopause at work references supporting and creating a positive environment. Basic health and wellbeing. “Focus on supporting the person rather than trying to work out if someone’s condition is a disability.”

Menopause is a completely natural part of a woman’s life but in some instances it may bring additional health difficulties that significantly impact working (and wider) life.

Common symptoms include depression, anxiety, stress, impatience (behavioural change), physical symptoms (brain fog, overheating, tiredness, insomnia).

One of the best sources of information currently available in the UK around menopause is the expert Dr Louise Newson. https://www.drlouisenewson.co.uk/

If menopause is causing issues for you and it is impacting your work take early advice. If you are being performance managed or disciplined for a reason connected to your menopause you should seek help from a lawyer at the earliest
opportunity.

What are my legal rights around menopause at work?

You have a number of options available to you in terms of legal claims. Depending on the facts of your situation you will need to choose wisely which kind of discrimination claim you
pursue. The options open to you are:

•  Disability discrimination
•  Sex discrimination
• Age discrimination

You will likely need expert legal help to set up your claim correctly. We no not recommend that you adopt a kitchen sink approach and bring multiple claims based on one set of facts.
This could damage your prospects of succeeding in your claim.

Is menopause a disability?

In some cases menopause may amount to a disability but it is not automatically a disability (only MS, HIV and cancer are) and it is incorrect to call menopause a disability because menopause is not in itself an impairment. The symptoms caused by menopause might amount to a disability. There is a legal distinction.

The test as to whether the symptoms and impacts arising from menopause can amount to a disability is the Equality Act section 6 definition of disability. You must be able to show that the symptoms/their impacts amount to –
(i) A physical or mental impairment or both;
(ii) They must be long-term;
(iii) They must have a substantial adverse impact; and
(iv) They must affect your normal day to day activities.

The legal test is a stringent one. You will need medical evidence and an impact statement setting out the substantial adverse impact your symptoms are having to be able to show that you have a disability and are entitled to additional employment protections.

See our pages on disability discrimination.

The Government guidance on determining disability is very helpful and available online here.

The Equality and Human Rights Commission guidance on disability discrimination is also
available online here.

Successful disability discrimination claims related to menopause

In Chan v Stanstead Airport the Claimant suffered from stress and anxiety. She was signed off work three times over 4 years. Her symptoms included memory issues and lack of concentration. She had no previous history of
mental ill health. The Employment Tribunal found that she had a recurrent disability.

In Lynskey v Direct Line the Claimant received a low appraisal rating, a written warning and she was deprived of her
sick pay. These were all found to constitute section 15 disability discrimination & failure to make reasonable adjustments.

In Rooney v Leicestershire City Council Ms Rooney suffered a variety of adverse impacts from menopause symptoms which included forgetting to attend meetings, losing her possessions, not locking her car, leaving the cooker and iron on, prolonged periods in bed. The first Employment Tribunal which heard her case did not accept that these symptoms had a substantial adverse effect and instead found them to be “fairly trivial”! The

Employment Appeal Tribunal overturned the decision. The first tribunal had erred in focussing on what Ms Rooney could do not what she could not do or could do with difficulty, which is the correct test.

In Charles v London Underground Ms Charles suffered from menorrhagia which is heavy and prolonged bleeding. Sanitary products were inadequate. This meant that she was unable to function normally such as avoiding going shopping or being anywhere without toilets nearby. The condition also disrupted her sleep and she suffered excessive fatigue. She demonstrated a substantial impact on her quality of life. An Employment Tribunal found that she did have a disability.

In Donnachie v Telent Technology the Claimant suffered from hot flushes along with palpitations and anxiety. HRT helped but not when she was under pressure. But for HRT her symptoms would have persisted. Remember that disability is assessed but for treatment. This is known as the deduced effect: if you remove the aid/treatment how would the person be able to function? The company said her symptoms were typical and therefore could not be a disability. An Employment Tribunal held that there was no reason why typical symptoms cannot be a disability.

Unsuccessful disability discrimination cases because of menopause

In Davie v Lothian Buses A full-time bus driver brought a claim but could only evidence her symptoms during a short period between April and July 2021. The Employment Tribunal held that her symptoms were not long-term
and therefore she was not disabled.

In Kelly v DWP Ms Kelly was gross misconduct dismissed for her unauthorised search of a work database. She blamed her conduct on menopause/HRT. The tribunal held that disability is not a shield to misconduct.

In Male v CC Devon & Cornwall the Claimant failed to provide adequate evidence of adverse effect. Her disability discrimination claim could not succeed.

Can I claim sex discrimination because of menopause?

Another potential legal claim around menopause is sex discrimination.

Sex discrimination cases around menopause have met with mixed success. As with any legal case the facts are very case-specific. Examples include:

Merchant v BT concerned a dismissal for poor performance following a final written warning. Ms Merchant had given her manager a letter from her doctor. Her manager chose not to conduct any medical investigations. He could not explain why he did not do so and instead took a bizarre and irrational approach based on what he had seen his wife experience. Ms Merchant had suffered less favourable treatment than a man.

Newbould v The Met dealt with a claim of sex-related harassment which succeeded. A female officer was belittled by her male manager who said she was getting upset because of her hormonal state. Ms Newbould also alleged that a female officer ordered her to try HRT because it is the duty of police officer to be robust. This was found to be harassment because of sex.

In a Scottish case Anderson v Thistle Marine an employment tribunal found that saying to a menopausal woman “a biddy fucking gets it, just get on wi’it” was sex-related harassment.
What about age discrimination and menopause?

Age discrimination is also a potential claim around menopause. Examples of successful cases include:

McCabe v Selazar concerned a woman who was dismissed at age 55. Her manager had said to her “Calm down… your hormones getting out of control” and had asked a recruiter to look for a younger woman to replace her.

In Galvani v Walters a manager told a 53-year-old woman that she was fat. She had menopause-related weight gain. This was held to be age discrimination.

In A v Bonmarche a woman was subjected to unreasonable criticism including calling her a dinosaur. The comments related to sex and age and were discriminatory.