Labor court wrong to say woman with menopause symptoms was not disabled
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In only the second workplace menopause appeal decision, the EAT ruled that an employment tribunal erred in ruling that a woman suffering from a wide range of menopause symptoms affecting his daily life was not handicapped for the purposes of labor law.
What happened in this case?
Ms Rooney worked as a social worker for Leicester City Council. In August 2017, she started suffering from a wide range of menopausal symptoms including hot flashes, palpitations, night sweats, insomnia, fatigue, dizziness, confusion, difficulty concentrating, memory loss, depression, anxiety, loss of confidence, urinary problems and headaches. Ms Rooney felt helpless and resigned on October 29, 2018. A few months later, her lawyers filed a complaint with the labor court alleging a constructive dismissal. On the claim form, her lawyers admitted that she was not disabled due to her menopausal symptoms.
However, Ms Rooney said her lawyers made the concession without her permission. She dismissed them and, the next day, filed a second complaint with the Labor Court, alleging discrimination, harassment and victimization on the basis of disability and / or gender. These allegations related to allegations of mistreatment by the Council of her symptoms of menopause, including:
- the Council did not respond to her request to be seen by a woman specialist in occupational health, which embarrassed her;
- the Council did not take his condition into account when it decided to issue a written warning concerning his absence due to illness;
- she was forced to discuss her situation in front of four male colleagues during an internal appeal hearing, again, which embarrassed her;
- a male manager downplayed the fact that she suffered from hot flashes by comparing it to the fact that he was also hot in the office; and
- the Council did not make reasonable adjustments for her.
Ms Rooney requested that the first request be amended to remove the statement that she was not disabled. However, at a preliminary hearing, a labor judge ruled that Ms Rooney was not disabled due to her menopausal symptoms. As a result, his claims of discrimination on the basis of disability, harassment and victimization were all dismissed. The judge also struck out the allegations of sex discrimination, harassment and victimization because they had no reasonable chance of success. Ms. Rooney appealed to the Employment Appeal Tribunal.
What has been decided?
The EAT ruled that the Tribunal was wrong to say that Ms. Rooney was not disabled. The judge had erred in considering what Ms. Rooney could do, instead of focusing, as he should have been, on what she couldn’t do. It was also wrong to conclude that his menopausal symptoms had only a minor or insignificant effect on his daily activities. The Tribunal accepted the evidence that she suffered from a wide range of symptoms that led her to:
- forgetting to attend appointments and events;
- lose personal effects;
- forgetting to take safety precautions when driving (such as applying the handbrake);
- forget to turn off appliances such as the oven and iron;
- forgetting to lock the door when leaving the house; and
- spending long periods in bed due to fatigue.
She also suffered from dizziness, incontinence and joint pain. The Tribunal accepted this evidence but did not explain why it considered these effects to be merely minor and insignificant. The Tribunal’s decision appeared to be based, in part, on the fact that in her first claim it had been declared not to be invalid, but this overlooked the fact that she had requested that the first claim be amended for delete this statement.
The EAT said the court was also wrong to strike out the allegations of sex discrimination, harassment and victimization. The judge had not taken into account the extent of Ms Rooney’s complaints in this regard and wrongly said her complaint was limited to a feeling of embarrassment at having to discuss her symptoms with men. It was also not explained why the claims were written off.
The EAT allowed Ms Rooney’s appeal and ordered a new labor tribunal to consider the claims.
What does this mean for employers?
There is growing interest in the impact of menopause in the workplace. In the past few months alone, two parliamentary inquiries were launched and the Wellbeing of Women charity urged employers to make the menopause pledge to increase understanding, support and training around the issue. Could greater awareness lead to an increase in labor court related claims, including discrimination claims? Media reports suggest this is already happening. However, a closer look reveals that since the Labor Court decisions were first published online in February 2017, only 44 of the 79,000 decisions have included the word ‘menopause’. And, in fact, menopause was an important issue in only 27 of those 44 decisions.
More interestingly, ten of those 27 decisions concerned the preliminary question of whether postmenopausal asylum seekers, like Ms Rooney, were considered disabled under the Equality Act 2010. In Donnachie v Telent Technology Services Ltd , it was decided that there was no reason in principle that typical menopause symptoms could not have a relevant disabling effect on an individual (not including the curative effect of hormone replacement therapy when used ). Despite this statement, further analysis reveals that only three claimants were disabled due to their menopausal symptoms (Ms Rooney could turn out to be the fourth).
To date, therefore, postmenopausal women have faced an uphill struggle to prove that they have the right to complain about discrimination on the basis of disability. However, the growing awareness of the impact of menopause symptoms may turn the tide. Whenever possible, employers should ensure that they seek occupational health advice on whether an affected employee has a disability, by asking questions that probe the different elements of the disability test.
The other important point for employers to remember is that insensitive behavior by managers can cause problems. This includes things like minimizing or minimizing symptoms, refusing to talk to staff about menopause issues, or conversely, forcing such conversations to take place. Analysis of the 27 decisions of the Labor Court suggests that this type of behavior is not uncommon. Employers can avoid responsibility for such mistakes by training managers on how to deal with postmenopausal employees. Information to support such training is now available free of charge. For example, in May 2021, the Chartered Institute for Personnel Development published A Guide to Managing Menopause at Work: Guidance for Line Managers, which includes tips on how to conduct sensitive discussions.
Rooney v Leicester City Council
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