To coincide with World Menopause Day on 18 October and with October being World Menopause Awareness Month, I have been reflecting on the wonderful opportunity I was given in the Summer to speak at the British Menopause Society annual conference about the menopause cases which have travelled through the Employment Tribunal in recent years – battles won and lost.
Women going through the menopause are the fastest growing demographic in the workplace right now. It is so important to be able to speak openly about menopause at work.
But yet when you look at the findings of the Faucett Society’s most recent survey of menopausal women at work, the results make depressing reading.
· 1 in 10 women have left a job due to menopausal symptoms
· 44% say their ability to do their job was affected by their symptoms
· 52% said their confidence at work was affected
· And despite consistent evidence that workplace support helps menopausal women, 8 in 10 said they did not feel supported by their employer.
This explains why the number of cases citing menopause coming through the Employment Tribunal citing menopause is rising rapidly.
These cases are being largely fought on grounds of discrimination.
The law around discrimination is contained in the Equality Act 2010.
To win a claim, an employee has to show less favourable treatment because of a protected characteristic.
There are limited protected characteristic. They include for example sex, race, disability, age, sexual orientation.
The menopause in and of itself is not a protected characteristic.
The UK government has confirmed that it does not intend to make any menopause-related changes to the Equality Act.
So these cases have to be fought on a different front and the cases to date have been fought and sometimes won by claiming age, disability or sex discrimination. In other words, the claim needs to be “shoe horned” into one or more of these categories.
This makes the menopause cases complex where more than one type of discrimination is in play. This also makes them more time consuming and expensive to fight.
I have touched below on each of an age, disability or sex discrimination menopause case to illustrate what is being grappled with in the Courts.
Age
In the case of McCabe v Selazar Limited, an Employment Tribunal found that Mrs McCabe had suffered age discrimination when dismissed at age 55.
The Tribunal found that the CEO’s comment of “calm down … don’t let the hormones get out of control” was evidence that he (who was in a younger age group) viewed Mrs McCabe as “a menopausal woman – that is, an older woman”.
This, together with evidence that Selazar had asked a recruiter to look for a younger person to replace Mrs McCabe and that the CEO considered older people not to be familiar with IT businesses, led the Tribunal to conclude that at least part of the reason for her dismissal was her age.
Disability
The question of whether an individual with menopause symptoms is disabled will be considered by tribunals on a case-by-case basis by reference to the statutory definition of disability.
A person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
For some people, menopause symptoms can be severe and have a significant impact on their quality of life and ability to work. In these cases, menopause symptoms could satisfy the definition of disability. For others, where symptoms are mild or moderate, it may not be possible to get over this hurdle of proving disability right at the start of a case.
In the case of Davies v Scottish Courts and Tribunals Service, Ms Davies worked as a court clerk.
She had placed a sachet of medication in her water in the Court room. During an adjournment, everyone left the Court room. When she returned her water jug was empty.
She then spotted two men in the public area drinking water. Ms Davies was concerned that their water had her medication in it and explained this. In response, one of the men became very irate and started shouting accusations that Ms Davies was trying to poison them.
Ms Davies then faced a disciplinary hearing. It was suggested that she had misled the men about the medication in the water as it was subsequently found that the medication was not in the water. She was told that she lacked remorse and didn’t appear worried that the men had drunk the water.
She said that menopause caused her to be confused and forgetful, so she could not remember whether the medication had been in the water.
Ms Davies succeeded in her disability discrimination claim. She was described as a wholly credible witness. The Tribunal accepted that Ms Davies’ conduct was affected by confusion and forgetfulness caused by her disability.
Further, the Tribunal found that the employer did not have reasonable grounds to sustain its belief that Ms Davies had lied.
Sex
In the case of Merchant v BT plc, Ms Merchant was dismissed following a final warning for poor performance. She had previously given her manager, Mr Dagless, a letter from her doctor explaining that she was “going through the menopause which can affect her level of concentration at times”.
In dismissing her, Mr Dagless chose not to carry out any further medical investigations of her symptoms, in breach of BT’s performance management policy.
In the Tribunal, Mr Dagless accepted that he would normally have referred an employee to Occupational Health if they raised ill-health issues during a performance-related dismissal and could not explain why he did not do so on this occasion. He then added that he relied on his own experiences as he had seen his wife go through the menopause. Clearly qualification enough….
The Tribunal upheld Ms Merchant’s claim for sex discrimination. It found that the reason for Mr Dagless’s actions was that he did not take menopause seriously because it was a “female condition”, and that he would never have adopted this “bizarre and irrational approach” with other “non-female related conditions”.
These cases will continue to be fought hard no doubt, but let’s hope that raising awareness of the impact of menopause at work will help women such as Mc Cabe, Ms Davies and Ms Merchant in the future.
Contact our Employment Solicitor
Rhian Radia is an employment Consultant Solicitor at Bishop & Sewell. For initial advice or to arrange a meeting, please email employment@bishopandsewell.co.uk or call on 020 7631 4141.
The above is accurate as at 17 October 2024. The information above may be subject to change.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.