FREE CHAPTER from ‘A Practical Guide to the Law in relation to Menopause and Perimenopause in the Workplace’ by Thomas Wood

CHAPTER TWO – MENOPAUSE AS A PROTECTED CHARACTERISTIC


Looking in more detail at the potential for ‘menopause discrimination’ requires us to identify a protected characteristic as provided for by s.4 Equality Act 2010, by reference to the further defining provisions contained within ss.5-12 Equality Act 2010. That much is obvious.

Equally obvious is that the clear candidates for applicable protected characteristics are sex, age, and disability insofar as menopause is uniquely feminine, applicable within a particular, albeit relatively broad, age range, and could potentially amount to a disability dependent on its effects. Conversely, it would affect women regardless of marital status, race, religion or belief, or sexual orientation.

Perhaps less obvious is that the protected characteristic of gender reassignment may well be in play in relation to a person experience menopause symptoms. For example, if a woman, as part of her transition to a man, was taking hormone blockers, she will experience menopause.


Sex

Sex is defined, rather vaguely, by s.11(a) Equality Act 2010 as being:

a reference to a person who has a particular protected characteristic is a reference to a man or to a woman.

The terms ‘man’ and ‘woman’ are defined in s.212(1) Equality Act 2010 respectively as:

a male of any age and

a female of any age.

It is recognised that there is some interaction between this provision and s.7 Equality Act 2010 (gender reassignment). The definitions of ‘man’ and ‘woman’ and the issue of how these apply to transgender persons are complex and beyond the scope of this text. The issues of sex and gender assignment and reassignment and consequent treatment in the workplace are important, but this book will not focus on them.


Age

Age as a protected characteristic is not limited to the particular length of time that a person has lived. Rather, age is defined in the Equality Act 2010 as ‘age group’. s.5(1)(a) Equality Act 2010 states:

a reference to a person who has a particular protected characteristic is a reference to a person of a particular age group.

s.5(2) Equality Act 2010 adds that:

A reference to an age group is a reference to a group of persons defined by reference to age, whether by reference to a particular age or to a range of age.

Whilst a single age can be set as a protected characteristic, a range of ages may also be. Certainly, it is more common for claimants to state an age group rather than a single age (for the obvious reason that it would be extremely difficult to prove that an employer is inclined to subject a person to a detriment because of their specific age, but would not do so were they one year older or younger).

The age group can be defined in any way. So, for example, it is legitimate to set it as ‘over 70’, ‘under 30’, or ‘between 40 and 50’. This is particularly helpful in the case of someone experiencing menopause since they are likely to wish to identify their ‘age’ along the lines of 45-55. That would then capture the period within which menopause is more often, generally speaking, producing adverse effects. In other words, given that menopause is strongly linked with a particular age range, it might well be possible to say that treatment on the grounds of menopause or its symptoms is in fact treatment because of age.

Of course, by the same token, age as a relevant protected characteristic could have less straightforward applicability in the case of early or late onset of menopause. As the boundaries of the age group widen, the weaker the age/menopause association becomes in general terms. Consequently, it becomes more difficult to suggest that treatment on the ground of menopause is in fact because of a particular age group.


Disability

The definition of a disability is well-known, being (per s.6(1) Equality Act 2010):

A ‘physical or mental impairment’ that

Has ‘a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities’.

A claimant must therefore be able to show the tribunal that:

  1. They suffered from an impairment;

  2. That impairment caused adverse effects on normal day-to-day activities;

  3. Those adverse effects were substantial i.e. more than trivial;

  4. Those adverse effects had been substantial in the long term i.e. they:

    1. Had, at the time of the alleged act of discrimination, lasted at least 12 months;

    2. Were, at the time of the alleged act of discrimination, likely to (in other words ‘could well’) last for at least 12 months or the rest of the claimant’s life; or

    3. Had ceased at the time of the alleged act of discrimination, but were likely to (‘could well’) recur as judged at the time of discrimination.

Impairment

It does not sit easily to equate menopause with impairment. When one thinks of impairment, one tends to imagine some form of damage or injury, or some form of reduction in bodily function. Menopause is entirely natural, and it could not realistically be said that the cessation of periods is, in itself, damage or injury.

However, it is not always necessary for a claimant to be able to point to a specific impairment (in the event of argument that ‘menopause’ was not an impairment as such). As the EAT stated in J v. DLA Piper UK LLP [2010] ICR 1052 at [38],

There are indeed sometimes cases where identifying the nature of the impairment from which a claimant may be suffering involves difficult medical questions; and we agree that in many or most such cases it will be easier – and is entirely legitimate – for the tribunal to park that issue and to ask first whether the claimant’s ability to carry out normal day-to-day activities has been adversely affected – one might indeed say ‘impaired’ – on a long-term basis. If it finds that it has been, it will in many or most cases follow as a matter of common sense inference that the claimant is suffering from a condition which has produced that adverse effect – in other words, an ‘impairment’. If that inference can be drawn, it will be unnecessary for the tribunal to try to resolve difficult medical issues of the kind to which we have referred.

That is because, as the EAT stated in Ministry of Defence v. Hay [2008] ICR 1247 at [36], ‘impairment’ is not equated with ‘clinical condition’, and is a functional concept rather than a medical one.

Substantial adverse effect

The assessment of whether adverse effects are substantial is one of comparison of a claimant’s abilities to carry out normal day-to-day activities with his or her ability had s/he not been impaired. Although the Office for Disability Issues, Guidance on matters to be taken into account in determining questions relating to the definition of disability, 2011 states at para. B1 that ‘The requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people’, the comparative exercise is not one of claimant against the average person (Paterson v. Commissioner of Police of the Metropolis [2007] ICR 1522).

Normal day-to-day activities are those activities that are done regularly by the general population, and do not necessarily need to be activities being done only by a particular individual. That extends to everyday activities done in the work environment, but does not include work-specialist activities.

Importantly, the focus for the tribunal is on what a claimant cannot do or can only do with difficulty, rather than what they can do. That was the error made by the tribunal in Rooney v. Leicester City Council UKEAT/0104/21. There, although the Claimant’s evidence that, because of menopause, she suffered with memory loss, spent prolonged periods of time in bed because of fatigue/exhaustion, and experienced dizziness, incontinence, and joint pain was accepted by the tribunal, it found that she was able to carry out some day-to-day activities because she provided care to others. The EAT found that the tribunal had erred in focusing on what the claimant could do and weighed that against what she could not.

The tribunal must consider the effect of menopause as if no treatment (e.g. hormone replacement therapy) was being received.

Finally, and with potentially some significance, the tribunal must consider the cumulative effects of menopause as well as any individual effect. It may be that an individual effect is not, of itself, substantial. However, two or more together might substantially impair a person’s ability to carry out normal day-to-day activities. Although not spelt out in terms by the tribunal in the case of Donnachie v. Telent Technology Services Ltd. case number 1300005/2020, it is apparent that that decision (that the claimant was disabled) was based on all the symptoms rather than any particular one.

Long-term

The issue that is most likely to affect someone experiencing menopause meeting the definition of disability is whether the effects are long-term. In many cases, there will have been a long-term substantial adverse effect on the individual at the time of the act(s) of discrimination. However, that will not always be the case. Whether the effects will last at least 12 months can only be measured at the date of the discriminatory act(s) and based on the information known at that date. The assessment cannot take account of events and information gained subsequent to the date of discrimination (see Singapore Airlines Ltd. v. Casado-Guijarro UKEAT/0386/13 for an example of the tribunal falling into that error).

It must be noted that it is the effects of menopause that must last 12 months or more, not the underlying cause. Someone may experience menopause, or any disability, without there being substantial adverse effects for the whole period of having the impairment. There is no disability if that impairment has been present for 12 months or more, but the effects only present at a substantial level for, say, six months.

Given that menopause can last for some years, this may be an issue that arises. The effects may not last, or may not be substantial for a sufficient period of time. If they have not, they may still be long-term if they recur or are likely to recur at a point beyond 12 months from the first occurrence. So, for example, someone that experiences effects in month one and month 14 may well be considered to be disabled, but someone that experiences effects in month one and month 10 would not.

Proving that the effects of menopause are/were likely to last, or recur beyond, 12 months at the time of an act of discrimination (assuming they had not already) might be a difficult issue for an employee to overcome. As with any disability, there is no guarantee, and medical evidence of some description to indicate that the effects ‘could well’ last or recur beyond 12 months may be required. Whilst it is perhaps not something capable of prognosing on a case-by-case basis, a GP letter, for example, stating that the employee in question is likely to experience the symptoms for 12 months is going to carry more weight than a number of internet searches demonstrating the average length of symptoms.

Overall, however, one would not expect the long-term issue to be too great a hurdle, but in some cases, employers could fairly put the employee to proof of the matter.


Gender reassignment

s.7(1) Equality Act 2010 provides:

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

The issues of gender reassignment and its consequences are complex, and beyond the scope of this text. The effects of gender reassignment and consequent treatment in the workplace are important, but this book will focus on the menopause as impacted by the laws around sex, age, and disability discrimination.


Summary

There is no clear-cut protection of the characteristic of menopause. The obvious candidate is the prohibition of disability discrimination in some circumstances. However, it will be seen that those experiencing menopause can derive some protection from the prohibition against sex and age discrimination; albeit that protection is not absolute.

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