Do menopausal symptoms amount to a disability?
A person has a disability under the Equality Act 2010 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. The effect of an impairment is long term if it has lasted or is likely to last for at least 12 months.
When considering whether an individual has a disability, the Tribunal will focus on what they cannot do, or can do only with difficulty, not what they can do easily. The effects of the impairment must be more than minor or trivial. The Employment Appeal Tribunal has recently considered the issue of whether menopausal symptoms amount to a disability for the purposes of the Equality Act.
Menopausal symptoms and disability
Ms R worked as a childcare social worker until her resignation. She issued a number of claims in the Employment Tribunal (ET), including sex and disability discrimination in relation to her employer’s alleged treatment of her due to her menopausal symptoms. In particular, she alleged that her employer did not take her situation into account before making decisions regarding certain aspects of her employment, including a written warning due to sickness absence.
On the issue of disability and menopause, Ms R stated that she had suffered with physical and psychological effects of the menopause for the previous two years. Ms R gave evidence in an impact statement that her menopausal symptoms included hot flushes and sweating, palpitations and anxiety, night sweats and sleep disturbance, fatigue, poor concentration, urinary problems and headaches. She said that her symptoms led her to 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. She also spent prolonged periods in bed due to fatigue/exhaustion. She also stated that her symptoms significantly affected her quality of life and have had a significant effect on her presentation and personality. The ET noted that the medical records did not entirely support her impact statement, although the Judge did not expressly state that he did not accept her evidence. It also went on to note that Ms R was able to carry out some day-to-day activities as she provides care to others.
The ET found that Ms R’s physical symptoms associated with the menopause did not amount to a disability for the purposes of the Equality Act because “nothing in the evidence .. suggests that they are physical impairments which are long standing and have or had a substantial adverse effect on her ability to carry out day to day activities”. The disability discrimination claims were dismissed.
Ms R appealed to the Employment Appeal Tribunal (EAT). The EAT found that the ET’s decision regarding the menopause symptoms was inconsistent with the description that Ms R had given of her symptoms. Ms R had given evidence, which was not rejected by the ET, that she did have significant physical impairments. There was no explanation as to how the symptoms set out by Ms R in her impact statement did not demonstrate an effect on day-to-day activities that was more than minor or trivial. It also found that the ET focused on what Ms R could do, rather than what she could not do. The EAT pointed out that many people, including those with disabilities, have caring responsibilities. The ET’s conclusion that this was not long term was unsupported by any reasoning. The EAT concluded that the ET had erred in law in holding that she was not a disabled person. The EAT allowed the appeal against the dismissal of the disability discrimination claim and sent the matter back to the ET.
Whether an individual has a disability under the Equality Act will, as the EAT noted, require “a careful factual analysis”. However, employers should be alert to the fact that the symptoms of the menopause can be physical and psychological. Symptoms can vary but can, depending on the circumstances, have a significant effect on a person’s day to day activities and their ability to perform their work as usual. In some circumstances, this could potentially amount to a disability.
It is interesting to note that in this case, Ms. R said that she felt embarrassed about discussing her menopause symptoms and the difficulties she was experiencing in the presence of male managers and colleagues. This included during an appeal hearing following a written warning for work related stress absence where four men were present. Ms R also gave evidence that when he advised her male manager that she suffered from hot flushes in the office, he had said he also got hot in the office, which she considered to be an insensitive comment and completely different to a woman experiencing hot flushes during the menopause. Employers should be aware that women may find it difficult to talk about their symptoms at work.
We reported earlier this year on an inquiry launched by the Women and Equalities Committee into workplace practices around the menopause. In particular, the inquiry will examine how workplace practices and Government policy can better support women experiencing menopause. ACAS have also issued guidance on managing the effects of the menopause at work.
20 October 2021
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