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Could the menopause be a disability under the Equality Act 2010?

View profile for Emily Yeardley
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Today marks World Menopause Day, a day designed to raise awareness for women who face health issues when approaching, during and beyond the menopause.

With three quarters of women saying that the menopause caused them to change their life and over half say it had a negative impact on their lives, according to the British Menopause Society, it will no doubt be reassuring to hear that there is authority to suggest that the physical and psychological effects of the menopause could constitute a disability for the purposes of the Equality Act 2010 giving rise to employment protections. It is not, however, an automatic disability so will depend on the effect on an individual’s ability to carry out day to day activities.

Why is this important?

Where a worker is disabled, an employer has a duty to make reasonable adjustments to alleviate the substantial disadvantage caused. An employer must not subject a worker to discrimination because they have a disability.  

What authority do we have?

In the case of Davies v Scottish Courts and Tribunals Service, Ms Davies, a court officer had symptoms of severe anaemia, stress, anxiety and memory loss as a result of the onset of the menopause.

Ms Davies dissolved medication (for another medical condition) in a jug of water in a court room. She, it later transpired, erroneously believed that two members of the public had ingested it. The employer believed that she had lied about her belief and it considered that she showed no remorse for her actions. Ms Davies maintained that she believed, at that time, that the medication was in the water but due to her memory loss, a side effect of the menopause, she could not be sure. She was dismissed for gross misconduct and bought a claim for unfair dismissal and disability discrimination.

The employment tribunal found the dismissal to be unfair. It also found that the dismissal was discriminatory because of ‘something’ (the memory loss) which arose in consequence of her disability. The employer could not justify its actions in dismissing Ms Davies as a proportionate means of achieving a legitimate aim. The tribunal ordered reinstatement to her post and for the employer to pay compensation of £19,009.84. £5,000 was attributed the injury to feelings with the remainder for arrears of pay.

What does this mean?

It was noted that Ms Davies’ symptoms were severe and therefore this will not provide a gateway for all women experiencing the menopause to be deemed disabled in the eyes of the law. The definition of disability under the Equality Act 2010 will need to be met.

If you would like to discuss any of the issues arising in this case, please contact a member of our employment department.

 

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