Menopause-related discrimination claims are typically brought under the Equality Act 2010 as claims for disability, sex and/or age discrimination. Compensation for discrimination is uncapped, so employers could face large awards.
Menopause, the workplace and the law:
How HR can prevent menopausal discrimination
Menopause support still lacking at UK workplaces
Lack of menopause support at work pushing women to resign
Menopause can be a ‘disability’ for the purpose of the Equality Act 2010
This was confirmed by the employment tribunal in Donnachie v Telent Technology Services Ltd, where the employee experienced night sweats six to eight times a night, and frequent hot flushes and palpitations.
Her condition was deemed to meet the legal definition of ‘disability’, meaning a physical or mental impairment that has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities.
Discrimination arising from disability
Most commonly, a claim for discrimination arising from disability arises when an employer dismisses an employee for a reason other than their disability (often poor performance or misconduct), but their poor performance or misconduct was a consequence of their disability.
This occurred in Davies v Scottish Courts & Tribunal Service, where the employee – a court officer who experienced heavy bleeding, anaemia, cystitis, dizziness and lack of concentration at the onset of menopause (which the employment tribunal accepted amounted to a disability) – was dismissed after mistakenly telling members of the public in court that they had drunk water containing her medication. The employment tribunal upheld her claim for discrimination arising from disability.
Sex discrimination
The employer in Merchant v BT PLC did not treat the employee’s menopause in the same way as it had treated other employees’ non-female-specific illnesses in the past, and the employee’s dismissal for poor performance was consequently found to amount to sex discrimination.
A GP letter confirmed that the employee’s symptoms included heavy bleeding, memory lapses and anaemia. Her employer had a policy recommending occupational health investigations when health issues may be impacting performance; however, her manager had not recommended investigations in her case, because he felt he had sufficient personal knowledge based on his wife’s menopause.
Age discrimination
The employee in A v Bonmarche Limited successfully claimed age, as well as sex, discrimination. Her manager had refused to adjust the temperature of the store where the employee worked and repeatedly called her ‘menopausal’ and a ‘dinosaur’ in front of staff and customers.
Justification defence for employers
If facing claims for indirect discrimination (where an employer’s provision, criterion or practice applies to all employees but puts those with a protected characteristic at a particular disadvantage), discrimination arising from disability, or direct age discrimination, employers will not be liable if their actions were a proportionate means of achieving a legitimate aim.
In Sokolova v Humdinger Ltd, though the requirement to wear a buttoned-up overall in a hot factory was found to indirectly discriminate against menopausal women, the employer was able to demonstrate that the requirement was justified to comply with food health and safety standards. As such, it was not liable for discrimination.
Conclusion
While it is still unclear what (if any) employment law changes may come out of the Commons Women and Equalities Committee’s inquiry, the government has indicated that it is looking at ways to improve the treatment of menopausal women in the workplace, including by encouraging employers to create a supporting environment.
In the meantime, recent case law and the public’s growing awareness of menopause suggest that employers should educate themselves and their workforce about the impact menopausal symptoms may have on an employee’s conduct, performance and needs, and have systems in place to support menopausal employees.
Emma Vennesson is counsel at Faegre Drinker Biddle & Reath
