According
to Trula Brunsdon, senior associate solicitor at Sherbornes Solicitors in Cheltenham, more
and more companies are asking whether they need a menopause policy.
While an increasing discussion around menopause and perimenopause has been helping to break down the taboo, the menopause and its effects are starting to be cited as a basis for discrimination in employment tribunals too.
Here, SoGlos shares an expert insight from the local employment and business law specialist.
About the expert - Trula Brunsdon from Sherbornes Solicitors
Originally employment law specialists,
working for employers and employees, Sherbornes
Solicitors in Cheltenham now has expertise and a proven
track record in business law, growing rapidly thanks to the
success of its approach to the law.
Senior associate solicitor, Trula Brunsdon, specialises in employment law and has over 18 years legal experience bringing and defending a wide range of claims, including unfair and constructive dismissal, discrimination and breach of contract.
Can you give us a recent example of menopause being cited in an employment tribunal?
A recent decision by the Employment Appeal Tribunal concerns a claim brought by Ms Rooney against Leicester City Council.
Ms Rooney was employed as a childcare and social worker. She started experiencing menopausal symptoms in August 2017 and told her line manager of this in April 2018. Her symptoms were constant until August 2018.
When she was off sick as a result of those symptoms, she received a warning for her absence.
During her appeal, she explained that she had an underlying medical condition, but did not give any further information, as she did not feel comfortable discussing it in front of the five men who were in the room.
After she left the Council’s employment, she brought claims for disability discrimination and sex discrimination, amongst other things.
What was the outcome of this case?
The employment tribunal found that Ms Rooney’s menopausal symptoms did not amount to a disability and that she had no chance of winning her claim for sex discrimination, so struck it out.
Ms Rooney appealed and the appeal tribunal decided that a different judge should re-hear the disability discrimination claim and decide whether she was disabled or not. That re-hearing has yet to take place.
Where does this situation leave employers?
The lack of case law leads to uncertainty for employers. As a result, there has been pressure on the government to make changes to the Equality Act 2010 to provide clarity.
However, in July 2022, the government published a policy paper that confirmed there were no plans to change it to provide protection specifically for menopause.
What do you anticipate will be the knock-on effects of this?
It is likely there will be a number of cases over the next few years, before the tribunal’s approach to menopause becomes clearer.
Even then, future cases are likely to depend on their own facts. That means that the uncertainly will remain for some time.
Why is the law as it stands problematic?
The more obvious characteristics that people might assume would provide protection – being female and typically between the age of 45-55 – come with problems.
The possible difficulty with claiming sex discrimination is not because trans men or non-binary individuals could go through menopause, but rather that if a man with a health condition would have been treated in the same way, then it won’t be sex discrimination.
Similarly, it is not obvious that a claim for age discrimination would be successful, given it is possible to go through early menopause.
That leaves disability discrimination, as claimed by Ms Rooney. It is likely that where symptoms are serious enough, those going through perimenopause and menopause will be deemed to be ‘disabled’.
However, they will still need to show that their employer knew of their condition and how it was affecting them.
As Ms Rooney’s case shows, some people will not feel comfortable sharing that information with male colleagues – if at all.
What stance does Sherbornes Solicitors take with regards to workplace menopause policies?
Sherbornes Solicitors has always taken the view that there is no point introducing a policy just for the sake of it, or to tick a box.
However, if a business is typically more male dominated, or wants to make it clear to staff that they will be listened to and supported, then introducing a menopause policy lets staff know who they can approach, that they will be taken seriously and the ways in which the business may be able to support them.
This policy alone may provide a line of defence should an employer face a tribunal on the subject.
If businesses are unsure what they can do to help those going through menopause and perimenopause, or want to introduce a menopause policy, they should seek advice.
