Law at Work - November 2021 – 1 / 4 观点
World Menopause Day is held each year on 18 October and its purpose is "to raise awareness of the menopause and the support options available for improving health and wellbeing" (International Menopause Society). We have recently seen this awareness translated into a practical response by the UK Government, announced on 29 October.
Following over 110,000 individual responses to the Department of Health and Social Care's call for evidence seeking to collect views on women's health earlier this year, and the second reading of the Menopause (Support and Services) Bill last month sponsored by Carolyn Harris MP, menopause will form a central part of the first ever government led Women's Health Strategy. Alongside this a new cross government taskforce will consider the role of education, training and workplace policies to support menopausal women. The Government has also committed to take action to reduce the cost of repeatable hormone replacement therapy (HRT) prescriptions – a move that will significantly benefit those women who use HRT to alleviate symptoms.
During the debate in Parliament last month, Ms Harris stated that almost 80% of menopausal women are in work but that three quarters report they are considering reducing their hours and one in four are giving up their jobs because they are finding it too difficult to balance their work life with their symptoms.
In recent years there have been several menopause related employment tribunal claims, and the potential challenges and sensitivities around this issue in the workplace were recently highlighted last month in the Employment Appeal Tribunal (EAT) case of Rooney v Leicester City Council. Ms Rooney, who was a childcare social worker, suffered from menopausal symptoms including insomnia (causing fatigue & tiredness), light headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines & hot flushes leading her to struggle both physically and mentally. Her GP had prescribed HRT and she was under the care of a Consultant at a specialist menopause clinic.
Her employer referred her for an occupational health assessment. She asked to see a female doctor but none were available. She went off sick with work related stress for which she was given a written warning. In the appeal against that warning she felt embarrassed and uncomfortable discussing her symptoms in the presence of male managers. She subsequently resigned and brought an employment tribunal claim against the council which included a claim for disability discrimination in relation as to its treatment of her with regard to her menopausal symptoms.
The employment tribunal dismissed Ms Rooney's claim concluding that she was not disabled under the Equality Act 2010 (2010 Act), which requires a person to have a physical or mental impairment that has a substantial and has a long-term negative effect on their ability to carry out normal day-to-day activities. Despite her evidence, the tribunal did not accept her impairment amounted to a disability nor that it had a longstanding nor substantial effect on her day-to-day life.
Ms Rooney appealed to the EAT which disagreed with the tribunal's approach. It allowed her appeal and remitted the issue of whether she was disabled to be considered by a different tribunal. The EAT held that the employment tribunal had erred in law including by failing to consider what is meant by "long term", concluding that her symptoms had no more than a minor effect on her day-to-day activities despite Ms Rooney's evidence to the contrary. The tribunal had also provided insufficient explanation for its reasoning.
Adverse treatment of women experiencing menopausal symptoms at work can result in claims of age and sex discrimination or harassment. Although menopause of itself does not amount to a disability under the 2010 Act, employers should consider whether an individual's menopausal symptoms meet the statutory test, and if so whether there are any reasonable adjustments it can make to alleviate the disadvantage she may suffer compared with other staff. Employers should also record separately any related sickness absence or performance issues, and, in any event, handle the issue with sensitivity. This may include:
With rising numbers of women, including older women, in the workplace, there is evidence that a lack of support by employers has led to menopausal women both leaving the workplace and increasingly turning to legal or other channels to speak up about their experiences. However, as the symptoms and effects of the menopause are becoming more widely discussed, employers are also engaging with their staff to ensure that they feel supported: engaging in dialogue, arranging reasonable adjustments or other, flexible working arrangements. In the future this should be supported at a governmental level with the Women's Health Strategy leading the way.