WHAT ARE THE LEGAL IMPLICATIONS FOR EMPLOYERS?

The number of Employment Tribunal cases is still relatively low but is increasing (0.05% of cases).

Menopause Experts reported in May 2022 that Employment Tribunal claims had increased by 44% in a year (from 16 claims to 23). The cases were claims for disability discrimination, unfair dismissal and sex discrimination.

However, that low number of claims probably does not reflect the volume of issues arising in the workplace. Matters may be raised as grievances and resolved before ever becoming claims. Claims may be settled and never make it to an Employment Tribunal hearing.

There is no specific legislation to protect staff going through menopause transition and claims have to be fitted into existing legislation.

Under the Equality Act 2010, menopause discrimination is largely covered under three protected characteristics:

• Age • Sex • Disability

There can also be claims for harassment and victimisation.

Under the Health and Safety at Work Act 1974 there is a duty to conduct suitable and sufficient risk assessments which includes identifying groups of workers who might be particularly at risk.

Some of the reported Employment Tribunal cases are presented on the grounds of disability discrimination. However, the claimant needs to establish that they fall within the legal definition of disability under the Equality Act 2010:

A physical or mental impairment, and the impairment has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities. For example, in Rooney v Leicester City Council (Employment Appeal Tribunal 2021), Ms Rooney brought claims of constructive unfair dismissal, direct disability discrimination, harassment and victimisation and direct sex discrimination.

The Employment Tribunal held that Ms Rooney was not suffering from a disability in relation to her menopause symptoms of anxiety and depression. Her disability discrimination claim was dismissed, along with her claims of harassment and victimisation.

The EAT allowed her appeal. The Employment Tribunal had made an error in law in holding that she was not a disabled person. Ms Rooney’s symptoms included hot flushes and sweating, palpitations and anxiety, night sweats and sleep disturbance, fatigue, poor concentration, urinary problems and headaches. These symptoms had a substantial adverse effect on her normal day-today activities.

The EAT remitted the claims to be considered by a fresh Employment Tribunal.