Within the Equality Act 2010 (EqA), there is a list of ‘protected characteristics’ and anyone who is being treated unfairly because of one of these characteristics may be able to bring a claim to the Employment Tribunal. Under Section 4 of the EqA the list of protected characteristics is as follows;
marriage and civil partnership;
pregnancy and maternity;
religion or belief;
The EqA also goes into further detail about these protected characteristics, providing additional information about who is protected. Under Section 6, disability is defined as;
(1) A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.
However, there is still some confusion surrounding what is actually classed as a disability and, therefore, who is protected by the EqA in this regard. In the case of Ms M Rooney v Leicester City Council, the Employment Tribunal was responsible for determining whether menopausal symptoms could be a disability in the eyes of the law. Initially, the Employment Tribunal found that the claimant’s alleged menopausal symptoms did not amount to a disability for the purposes of the Equality Act 2010 and the claim was dismissed.
The claimant decided to appeal this decision and was then granted permission for the appeal against the finding that she was not a disabled person. Upon re-visiting the case, the Employment Appeal Tribunal (EAT) found that the Tribunal did not direct itself as to the statutory definition of “long term” under Paragraph 2 of Schedule 1 of the EqA;
2 Long-term effects
(1) The effect of an impairment is long-term if—
(a) it has lasted for at least 12 months,
(b) it is likely to last for at least 12 months, or
(c) it is likely to last for the rest of the life of the person affected.
The EAT also found that there was no explanation as to how the Tribunal concluded that the claimant’s evidence, which it did not reject, did not demonstrate an effect on day-to-day activities that was more than minor or trivial. It was ultimately concluded that the Tribunal fell into the error of weighing what the claimant could do against what she could not do and the Tribunal erred in law in holding that the claimant was not a disabled person at the relevant time.
The EAT stated that the determination of whether the claimant was a disabled person will require careful factual analysis and the issue must be remitted to the Employment Tribunal.
So, are menopausal symptoms a disability?
Whilst this case has not yet been remitted and there is no final ruling as to whether the claimant has won her case of disability discrimination, the fact that the appeal against the dismissal of the disability discrimination claim was allowed is pivotal. This case has caused many employment law specialists to rethink the definition of ‘disability’ under the EqA and it is likley that even though the menopause is not mentioned in this piece of legislation, employees suffering from menopausal symptoms may be protected from discrimination under the EqA in the future.
Lots of media outlets have been focusing on menopause recently and looking into the effects that menopausal symptoms have on women’s daily lives. With an increased focus on menopause these days, it is likley that more women who have experienced adverse treatment in the workplace because of their menopausal symptoms will consider bringing a discrimination claim to the Employment Tribunal.
What can employees learn from this case?
Although it has not yet been decided whether or not menopausal symptoms will actually amount to a disability in the case above, it should not be assumed that menopausal symptoms will never be considered a disability in some circumstances under key UK employment law legislation. Ultimately, should the menopausal symptoms experienced have a significant impact on an employee’s daily life and, in turn, affect their ability to carry out their work responsibilities as they usually would, this could potentially amount to a disability.
All employees need to be aware that their employers should make reasonable adjustments when required to accommodate anyone with a disability in the workplace. Moving forward, it is recommended that employers consider women’s individual circumstances relating to their menopausal symptoms and they most certainly should not be treating female employees less favourably because they are going through menopause.
Under Chapter 2, Section 13 of the Equality Act 2010, direct discrimination is described as;
A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
Being aware of the protection provided to anyone who is being discriminated against in the workplace is incredibly advantageous and it can help employees to identify if the conduct they are experiencing is unlawful. If you are being treated less favourably due to a protected characteristic, whether this is your age, gender or disability, it is beneficial to seek employment law advice. An employment law solicitor, lawyer or advocate will be able to provide you with additional information about the EqA and help you to establish whether you are being discriminated against in the workplace.
Should you wish to make a discrimination claim against your employer, you do need to act quickly as there are time limits for this type of claim. Most discrimination claims need to be filed within three months less one day from the date that the discrimination occurred. Should the discrimination be an ongoing process, this time period runs from the most recent discriminatory behaviour. An employment law specialist will be able to assist you with your claim and help you to ensure you have the best chance of success.
Getting employment law advice in London
When searching for an employment lawyer in London who can assist you with a discrimination claim, do not hesitate to contact Damian McCarthy. As a Senior Advocate with over two decades of experience handling complex employment law cases, you can trust that Damian will be able to provide you with the sound legal advice that you need, regardless of what your case entails. Damian has a reputation for fighting “tooth and nail” for his clients and he will work closely with you to achieve the best possible results.
As an employment law specialist, Damian has represented clients at the highest levels and he
has turned very difficult cases into winning ones. He is regularly hired by the biggest law firms in
the UK to represent clients and he specialises in discrimination claims and whistleblowing claims. You can always turn to Damian in confidence knowing he values your interests and he will be totally committed to your case. Simply get in touch with Damian today for a free, confidential and no-obligation discussion about your employment law issue.
It is worth noting that whilst Damian will represent people if he can, he is unable to represent
everyone who contacts him. If he is unable to represent you himself, he can still help you to
obtain legal funding and he will also recommend the most suitable employment lawyer for your
individual needs. Damian is happy to help in any way he can, completely free of charge.