Background
The claimant worked for Leicester City Council as a childcare social worker until her resignation in October 2018. She started experiencing menopausal symptoms and taking medication in 2017. She provided evidence showing that her symptoms had begun in August 2017 and been constant until August 2018. She informed Occupational Health about her symptoms, but they were not explored further. She also informed both her line managers, one of whom appeared to be sympathetic, but the other displayed less understanding.
Test for disability
The test in determining whether an employee is disabled for the purposes of the Equality Act 2010 is assessing whether someone’s condition has a ‘substantial, long-term, adverse effect on their ability to carry out normal day-to-day activities’. Substantial is taken to mean ‘more than trivial’ and long-term means symptoms that last or are likely to last longer than 12 months.
The original decision
At the Employment Tribunal, the claimant presented evidence that her symptoms included hot flushes, sweating, palpitations, night sweats and memory loss, led to her forgetting to attend meetings and appointments, losing personal possessions, forgetting to put the handbrake on her car, forgetting to lock her house and leaving the cooker and iron on. She also spent long periods in bed due to extreme fatigue and exhaustion. However, the Tribunal held that the effects were ‘fairly trivial’ and that because she carried out caring responsibilities for her husband and mother, she could not be disabled.
Why the Appeal Tribunal disagreed
The Employment Appeal Tribunal reversed the original decision on several grounds and remitted the case to a newly constituted Employment Tribunal:
- The Tribunal emphasised what the employee could do, rather than what she found difficult: it held that because she had caring responsibilities, she could not be disabled. The EAT disagreed, as many people with disabilities also have caring responsibilities
- The Tribunal did not reject the employee’s evidence that her menopausal symptoms led to her forgetting to lock her house, to use the handbrake on her car, and turn off the cooker/iron, yet concluded that the employee’s symptoms had only a trivial effect on her day-to-day activities. The EAT concluded that there was no reasoning to this and that her symptoms did have a more than trivial effect on her ability to carry out day to day activities.
- The Tribunal found that the employee was not relying on physical symptoms of the menopause as amounting to a disability, yet this was inconsistent with the description she gave of her symptoms to the Tribunal.
- The Tribunal did not properly consider whether the effect was ‘long-term’.
What to take away from the decision
This is only the second appeal concerning menopause in the workplace. It highlights the increasingly visible difficulties faced by many women experiencing menopausal symptoms in the workplace and illustrates the challenges that can arise in establishing that their symptoms amount to a disability.
The employee in this case was open about her symptoms and that they were a result of the menopause, yet her male manager and even Occupational Health seemed to minimise her experience and failed to recognise the scale of the impact these had on her ability to carry out daily activities.
With the recommendations of the Women and Equalities Committee’s inquiry into menopause in the workplace awaited, this case illustrates that greater awareness about the menopause is needed and greater support should be offered to employees. Employers should be aware that women experiencing menopausal symptoms may be able to establish they have a disability for the purposes of the Equality Act 2010. They may also be able to establish that they have been subject to sex discrimination. By fostering a supportive and understanding workplace culture, discrimination and the threat of subsequent litigation can be avoided.
For more information please contact:
Katie Hodson on 0161 475 7670 or Katie.Hodson@sasdaniels.co.uk
Matthew Ottley on 0161 475 7663 or matt.ottley@sasdaniels.co.uk
Background
The claimant worked for Leicester City Council as a childcare social worker until her resignation in October 2018. She started experiencing menopausal symptoms and taking medication in 2017. She provided evidence showing that her symptoms had begun in August 2017 and been constant until August 2018. She informed Occupational Health about her symptoms, but they were not explored further. She also informed both her line managers, one of whom appeared to be sympathetic, but the other displayed less understanding.
Test for disability
The test in determining whether an employee is disabled for the purposes of the Equality Act 2010 is assessing whether someone’s condition has a ‘substantial, long-term, adverse effect on their ability to carry out normal day-to-day activities’. Substantial is taken to mean ‘more than trivial’ and long-term means symptoms that last or are likely to last longer than 12 months.
The original decision
At the Employment Tribunal, the claimant presented evidence that her symptoms included hot flushes, sweating, palpitations, night sweats and memory loss, led to her forgetting to attend meetings and appointments, losing personal possessions, forgetting to put the handbrake on her car, forgetting to lock her house and leaving the cooker and iron on. She also spent long periods in bed due to extreme fatigue and exhaustion. However, the Tribunal held that the effects were ‘fairly trivial’ and that because she carried out caring responsibilities for her husband and mother, she could not be disabled.
Why the Appeal Tribunal disagreed
The Employment Appeal Tribunal reversed the original decision on several grounds and remitted the case to a newly constituted Employment Tribunal:
- The Tribunal emphasised what the employee could do, rather than what she found difficult: it held that because she had caring responsibilities, she could not be disabled. The EAT disagreed, as many people with disabilities also have caring responsibilities
- The Tribunal did not reject the employee’s evidence that her menopausal symptoms led to her forgetting to lock her house, to use the handbrake on her car, and turn off the cooker/iron, yet concluded that the employee’s symptoms had only a trivial effect on her day-to-day activities. The EAT concluded that there was no reasoning to this and that her symptoms did have a more than trivial effect on her ability to carry out day to day activities.
- The Tribunal found that the employee was not relying on physical symptoms of the menopause as amounting to a disability, yet this was inconsistent with the description she gave of her symptoms to the Tribunal.
- The Tribunal did not properly consider whether the effect was ‘long-term’.
What to take away from the decision
This is only the second appeal concerning menopause in the workplace. It highlights the increasingly visible difficulties faced by many women experiencing menopausal symptoms in the workplace and illustrates the challenges that can arise in establishing that their symptoms amount to a disability.
The employee in this case was open about her symptoms and that they were a result of the menopause, yet her male manager and even Occupational Health seemed to minimise her experience and failed to recognise the scale of the impact these had on her ability to carry out daily activities.
With the recommendations of the Women and Equalities Committee’s inquiry into menopause in the workplace awaited, this case illustrates that greater awareness about the menopause is needed and greater support should be offered to employees. Employers should be aware that women experiencing menopausal symptoms may be able to establish they have a disability for the purposes of the Equality Act 2010. They may also be able to establish that they have been subject to sex discrimination. By fostering a supportive and understanding workplace culture, discrimination and the threat of subsequent litigation can be avoided.
For more information please contact:
Katie Hodson on 0161 475 7670 or Katie.Hodson@sasdaniels.co.uk
Matthew Ottley on 0161 475 7663 or matt.ottley@sasdaniels.co.uk