Tribunal were wrong to strike out menopause disability and sex discrimination claims (EAT)

John Cook

Overview
The EAT (HHJ Tayler) has held that a tribunal erred in holding that an employee suffering from menopausal symptoms was not disabled under the Equality Act 2010, and in dismissing her disability and sex discrimination, harassment and victimisation claims. The tribunal’s judgment failed to properly analyse the claims and consider the evidence presented to it, and it was not Meek-compliant as it did not adequately explain why the claims were dismissed. The claims were remitted to a differently constituted tribunal.

This case is an example of the difficulties faced by menopausal women in the workplace and the challenges that can arise in establishing that their symptoms amount to a disability. Despite setting out the employee’s comprehensive list of symptoms and the adverse effects on her day-to-day activities, the tribunal’s conclusion was that the effects were only minor or trivial. This is only the second appellate case concerning menopause discrimination at work.

Definition of disability
For the purposes of protection under the Equality Act 2010 (EqA 2010), a person is disabled if:

  • They have a physical or mental impairment.
  • The impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

(Section 6, EqA 2010.)

The effect of an impairment is “long-term” if:

  • It has lasted for at least 12 months.
  • It is likely to last for at least 12 months; or
  • It is likely to last for the rest of the life of the person affected.

(Paragraph 2(1)(b), Schedule 1, EqA 2010.)

In Ahmed v Metroline Travel Ltd UKEAT/0400/10, the EAT held that a tribunal must not carry out a balancing exercise between what a person can and cannot do when determining whether they have a disability.

Facts
Ms Rooney worked for Leicester City Council as a childcare social worker until her employment ended following her resignation with effect from 29 October 2018.

On 24 January 2019, solicitors instructed by Ms Rooney presented a claim for constructive dismissal and unpaid holiday pay, overtime and expenses.

On 25 January 2019, Ms Rooney, acting in person, presented a second claim to the tribunal. This claim was for disability and sex discrimination, harassment and victimisation with regard to the Council’s treatment of her in relation to her menopausal symptoms. The claim stated that she had suffered from the physical, mental and psychological effects of the menopause for two years, including insomnia (causing fatigue and tiredness), light-headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines and hot flushes. These had had a negative impact on her life to the extent that she had struggled physically and mentally to cope. Her GP had prescribed hormone replacement therapy and she was under the care of a consultant at a specialist menopause clinic.

The Council had referred her to occupational health, but they were unable to meet her request that she be reviewed by a female doctor. Ms Rooney stated that she felt embarrassed and uncomfortable discussing her menopause symptoms and the difficulties she was experiencing in the presence of male managers and colleagues. This included her appeal hearing following a written warning for work-related stress absence where four men were present. She further stated that when she advised her male manager that she suffered from hot flushes in the office, he had said he also got hot in the office, dismissing the fact that this was a menopause symptom.

A further preliminary hearing was fixed by the tribunal on its own motion to determine whether:

  • Ms Rooney’s claims for constructive dismissal and disability and sex discrimination should be struck out for having no reasonable prospects of success.
  • The claims should be allowed to proceed only if Ms Rooney pay a deposit order.
  • If the claims were allowed to proceed, Ms Rooney had a disability at the relevant time.

The preliminary hearing on 1 November 2019 held that Ms Rooney was not suffering from a disability in relation to her menopause symptoms, anxiety and depression and her disability discrimination claim was dismissed, along with her claims of harassment and victimisation. Ms Rooney’s sex discrimination claim was struck out for having no reasonable prospects of success.

Ms Rooney appealed against the dismissal and strike-out of her claims.

Decision
The EAT (HHJ Tayler, sitting alone) allowed the appeal and remitted the claims to be reconsidered by a differently constituted tribunal.

The EAT held that the employment tribunal erred in law in finding that Ms Rooney was not a disabled person, in striking out her discrimination claims without adequately analysing them, and in giving insufficient reasons for its decision.

Case
Rooney v Leicester City Council EA-2020-000070-DA and EA-2021-000256-DA (7 October 2021)

John Cook – Solicitor

John Cook

I am a qualified Solicitor with over 30 years’ experience running a business, managing a team, appearing in the Employment Tribunal and advising on almost every conceivable employment law and HR issue. Clients appreciate my down to earth and straight forward approach that allows them to achieve results and manage their organisation more effectively. I take the worry out of employment law and HR issues with a proactive and robust approach.