Menopause discrimination: Where are we now?

October heralded an important legal first when a Leicester employment tribunal began hearing the case of Rooney v Leicester City Council. It is the first case where a person's menopausal symptoms have been deemed by an appeal court to potentially amount to a disability for the purposes of the Equality Act 2010.

So, what lessons can be learned from the Rooney case? And are employers doing enough to provide adequate menopause support for their people?

Facts of the Rooney case

Ms Rooney, who worked as a social worker, suffered from menopausal symptoms, anxiety and depression. As a result of taking extended periods of sickness absence for her symptoms, her employer issued her with a formal warning. This was despite the fact she had informed her employer about her menopausal symptoms.

Ms Rooney alleges she was treated unfavourably because of her absences and that inappropriate comments were made about her symptoms. This led her to resign and bring employment tribunal claims for discrimination, harassment and victimisation on the grounds of both disability and sex.

Ms Rooney said: "I was a dedicated Children's Social Worker and I worked at Leicester City Council for 12 years but when I started suffering with work related stress and anxiety and menopausal symptoms nobody listened or helped me. I felt let down and betrayed after working there for so long and I felt they had no compassion and understanding and awareness of the menopause"¹.

Menopausal symptoms as a disability?

After several preliminary hearings and an appeal, the Employment Appeal Tribunal (EAT) set a legal precedent in February 2022 when it concluded that menopausal symptoms could meet the legal definition of disability for the purposes of section 6 of the Equality Act 2010.

This law provides that a person is disabled if they 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. In this context, "substantial" means more than minor or trivial.

Having referred to Ms Rooney's evidence, the EAT held that the tribunal had erred in deciding that Ms Rooney's symptoms did not meet this definition.

The EAT referred to Ms Rooney's evidence that her symptoms led to her forgetting to attend events, meetings and appointments; losing personal possessions; forgetting to put the handbrake on her car and forgetting to lock it; leaving the cooker and iron on and leaving the house without locking doors and windows. Ms Rooney also spent prolonged periods in bed due to fatigue and suffered with dizziness, incontinence and joint pain.²

In the EAT's view³, the tribunal had not explained how it had concluded that this evidence, which it did not reject, did not demonstrate an effect on day-to-day activities that was more than minor or trivial. Instead, the tribunal had wrongly focused on what Ms Rooney could do, rather than on what she could not do. This was contrary to the approach endorsed in Ahmed v Metroline Travel Ltd EAT/0400/10⁴

The EAT therefore remitted the question of whether or not Ms Rooney was disabled to the employment tribunal on the basis that it required a fresh and careful analysis of the facts.

The tribunal heard the case on 2 October 2023, and a decision is awaited.

Implications for employers

The Rooney case confirms that menopausal symptoms can amount to a disability – provided the legal criteria set out in s.6 of the Equality Act 2010 are met. As a result, when dealing with an employee's sickness absence, performance or capability issues in circumstances where the employee has disclosed (or the employer ought reasonably to know) that they are suffering with menopausal symptoms, managers should consider the employee's symptoms and circumstances carefully, bearing in mind that they may amount to a disability. An employment tribunal will have particular regard to the combined effect of conditions and symptoms, when deciding whether they have a substantial adverse effect.⁵

Regardless of the legal position on disability, an emotionally intelligent and supportive approach remains paramount.

Where a person's menopausal symptoms amount to a disability, other potential claims include discrimination arising from disability under s.15 of the Equality Act 2010, as well as a failure to make reasonable adjustments under s.20 of the Act. The potential legal pitfalls are numerous.

Even where the disability discrimination provisions are not triggered, for example where menopausal symptoms are intermittent and do not therefore meet the "long-term" requirement in s.6 of the Act, other strands of discrimination protection may come into play, for example sex discrimination and/or age discrimination.

Harassment is also a very real risk, where your organisation turns a blind eye to "banter" about the menopause. In the case of Best v Embark on Raw Ltd⁶, an employment tribunal found that a colleague's comments to the claimant about the menopause and the continued pursuit of the topic constituted unwanted conduct, which had the effect of violating the claimant’s dignity and of creating a humiliating environment for her at work. Consequently, her claim of unlawful harassment – against the employer - was successful.

Are employers doing enough?

Given research published recently by the CIPD⁷ that found only a quarter of employer respondents has a menopause policy or other support, it seems there is much remaining room for improvement.

The research, which was based on a survey of over 2,000 women, aged 40 to 60, who are currently employed in the UK also reported:

• More than a quarter said the menopause has had a negative impact on their career progression; 
• Around one in six (17%) have considered leaving work due to a lack of support in relation to their menopause symptoms, and a further 6% have left work;
• Having a disability or long-term health condition makes a significant difference with around one in 12 (8%) in this situation having left work and a further one in four (24%) considering it (compared with 5% and 14%, respectively, of those without a disability or long-term health condition); and
• Over half have been unable to go into work at some point due to menopause symptoms.

These figures make for bleak reading and there is, unquestionably, a long way to go. More positively, there is therefore a very real opportunity for employers who want to attract and retain this key talent demographic.

And better support does not necessarily entail costly or complicated initiatives. The research cited flexibility and the ability to control temperature at work amongst the most helpful measures so, as a first step, it is worth organisations exploring how these options could work, for example by offering hybrid working or by providing people with desk fans or uniforms in breathable fabric.

Direction of travel for menopause support

Having supported Ms Rooney with her case, the Equality and Human Rights Commission (the UK's equality regulator) has announced⁸ that it intends to publish guidance for employers on how to support people affected by the menopause. So, notwithstanding the government's recent decision not to introduce specific legal protection against menopause discrimination, the direction of travel is an increased expectation on employers to take ownership of this issue.

Menopause support should feed into organisations' wider diversity, equity, inclusion and belonging strategies. Where appropriate, this will involve consulting with employee resource groups or communities who are affected by menopause, so that measures are tailored sufficiently to reflect the unique challenges they face in your workplace.

Ultimately, by failing to engage with this issue, your business risks not only losing the valuable talent of people who have often reached the pinnacle of knowledge in their particular field, but it also jeopardises how clients, suppliers and other stakeholders view your brand, as well as worker productivity and general morale.

As the so-called "War for talent" continues, implementing effective menopause support is not only a quick win but it is the right thing to do for half of the working population.

If you would like further information on the legal considerations around menopause at work, as well as a first-hand account of how the menopause has affected one of our RPC colleagues and the support that has helped her, please tune in to RPC's The Work Couch podcast episode: the impact of menopause in the workplace.

A version of this article was first published in Law360