Menopause has been in the news recently after the deputy Bank of England governor used the word to describe his negative view of the economy, prompting debate about the nature of menopause and attitudes towards it; he later issued an apology regretting the ageist and sexist undertones of his comment. Contributor David Southall, Employment Law Consultant – ELAS Group.
Discussion will no doubt be re-energised following an Employment Tribunal’s ruling that a Scottish Court and Tribunal Service employee was discriminated against because of her menopause. Mandy Davies had worked for SCTS for 20 years but was dismissed last year for gross misconduct. She took the case to tribunal claiming she was discriminated against on the grounds of disability due to her menopause. The Judge ruled that she had been unfairly dismissed and awarded her £19,000, stating that she should get her job back.
David Southall is an employment law consultant for the ELAS Group. He says: “The reporting of this case is light on detail, however, employers with an eye to good management should not become too caught up in looking at whether or not menopause is a disability. What may be defined as a disability by the benefits agency or an indignant tabloid journalist is of no help when considering how to manage an employee who is underperforming or conducting themselves in a challenging manner. The issue for employers should not be whether the menopause is a disability, but whether the employee they are seeking to manage fairly has a medical history that would indicate disability under the Equality Act.
“The criteria used by a tribunal to determine whether or not someone is disabled are legal, although medical evidence will have been consulted as well. Some conditions are automatically classed as a disability by the Equality Act e.g. type A diabetes, HIV, cancer or multiple sclerosis. All other conditions are judged by the effect their symptoms have on an individual.
“The base line is that the medical condition is a physical or mental impairment which has a substantial and long term negative effect on an individual’s ability to do normal daily activities. Substantial is more than trivial e.g. it takes someone longer than usual to get dressed and long term means that it has been affecting an individual for over 12 months. Day to day tasks are not limited to workplace tasks, thus someone may be able to undertake all their normal duties yet still be disabled for the purposes of the Equality Act. Thus whether or not the menopause is considered a disability will depend on exactly how it affects an individual woman at that stage in her life.
“In this case, Ms Davies clearly experienced more extreme and detrimental effects of menopause than others may do. Her employer should have taken this into consideration before considering what action to take in respect of her conduct, which was the centre of the case. In a similar way to people suffering depression, it is the severity of how the condition affects the individual, rather than simply whether or not depression is a disability.
“The main thing for employers to take away from this case is that they need to take all aspects of an employee’s situation into account before making decisions with regards to their employment. What may, upon first consideration, be considered unacceptable conduct may require a more nuanced response than just referring to the employee handbook for a list of dismissal-worthy behaviour.”
