Menopause and potential discrimination

Rooney v Leicester City Council [2021] EA-2020-000070-DA and EA-2021-000256-DA

In this case, the Employment Appeal Tribunal (“EAT”) held that the Employment Tribunal (“ET”) had erred in finding that the Claimant was not disabled as a result of her menopause symptoms, and should not have struck out her claims of disability and sex discrimination or dismissed her application to amend the claim. The EAT remitted the case to a different ET.

The Claimant was employed as a childcare social worker by the Respondent and resigned in August 2019. She submitted a claim for for constructive unfair dismissal (amongst other claims). This initial claim form was submitted by solicitors instructed by the Claimant and contained a paragraph stating that she accepted she was not disabled under section 6 of the Equality Act 2010. The next day the Claimant submitted another claim form, this time in person, claiming sex discrimination and disability discrimination due to “severe menopausal symptoms”, describing those symptoms, which were both physical and mental (and included insomnia, confusion, stress, anxiety, palpitations, migraines and hot flushes), in detail. She also applied to amend her first claim form to remove the paragraph stating that she was not disabled on the basis that her solicitors had not been instructed to include this.

The ET, fixed a preliminary hearing to determine whether the constructive unfair dismissal, disability discrimination and sex discrimination claims should be struck out and whether the Claimant was disabled for the purposes of the Equality Act 2010. The ET struck out the claim for sex discrimination on the ground it had no reasonable prospect of success. The ET also held that the Claimant was not disabled. Although the ET stated that the case was interesting and difficult, its judgment was brief and did not appear to go into the issues in the same depth as the ET had at the hearing.

On the issue of disability the EAT found the ET had erred in its finding that the Claimant was not disabled, partly because it had fallen into the “trap” of comparing what the Claimant could and could not do as a result of her health, which prior case law confirms is not permitted. The EAT also noted that the Claimant’s evidence about her health was not questioned and that the ET’s judgment, which found that any impairment was not “long standing”, was inconsistent with that evidence, which showed that her symptoms had started in August 2017 and were ongoing at the time of resignation in October 2018. The EAT also found that the ET had failed to take into account the Claimant’s evidence that the statement in the original claim form, that she was not disabled, had been pleaded without her instructions. The EAT remitted the issue of whether the Claimant was disabled to the ET.

On the strike out appeals the EAT found that the ET had not met the “fundamental requirement to explain to the Claimant why her complaints were struck out” and so allowed these appeals. The EAT also allowed the appeal against the ET’s refusal to permit an amendment to the claim on the basis that the ET had not properly considered the application and so again could not provide reasons for rejecting the application.

As the public conversation about menopause continues, and awareness of its impact on women grows, we are likely to see more cases of sex and/or disability discrimination arising from the treatment of those going through the menopause by their employers and colleagues. It will be interesting to see what recommendations come out of the Women and Equalities Committee’s recent enquiry into the menopause in the workplace, and whether it recommends any changes to legislation to address the issue of discrimination against those experiencing the menopause.