There are some conditions that tend not to be discussed in the workplace and one of them is menopause. The problem is that it naturally affects almost half the population to a greater or lesser degree and for those with strong and/ or enduring symptoms it’s a perishing nuisance. (You can tell that was said with some feeling!) Towards the end of 2015 the Chief Medical Officer, Dame Sally Davies publically urged companies to create an environment where women can discuss the symptoms of menopause. Stop blushing chaps.
On average it is said that the menopause begins at the age of 51. The report sets out a number of facts, including that about 80% of women going through the menopause have symptoms for around four years and for about 10% of women, symptoms last up to 12 years. Typically, women may suffer memory loss and difficulties with concentration, low mood or anxiety. They can also suffer physical symptoms such as hot flushes.
For those with severe symptoms it can be a debilitating condition. But is it a disability? Surely not – but it seems it could be. It depends on the circumstances.
The American case of Sipple v Crossmark was brought as a disability claim, in relation to a failure to make reasonable adjustments, victimisation and failure to follow a grievance procedure amongst other things. The Claimant had to establish a prima facie case for discrimination and the employer had to show that there was a legitimate reason for less favourable treatment which was not on the basis of discrimination. However, the Claimant in Sipple did not show that her condition affected her normal day to day activities as is required under the UK Equality Act 2010 (EqA) and she failed to demonstrate that she was disabled, or that the employer had breached any law. The employer was willing to make adjustments but the Court found that the adjustments she required were not reasonable.
In order for a condition to be classed as a disability in England and Wales, the EqA requires that the employee must have a physical or mental impairment which has a substantial and long term adverse effect on his or her ability to carry out day to day activates.
If an employee has a disability and the employer treats him, or her unfavourably because of something arising out of that person’s disability and it cannot justify its actions, then the employer may be guilty of discrimination arising from a disability.
The failure to make reasonable adjustments where there is a disability is also a breach of the EA. Where an employer has a provision, criterion, or practice within its practices which puts a disabled person at a substantial disadvantage in comparison with non-disabled employees or applicants for jobs, it is obliged to take such steps as are reasonable to avoid that person suffering that disadvantage. A failure may lead to a claim.
If the physiological or physical consequences of menopausal symptoms are sufficiently severe that they adversely affect an employee on a long term basis then the definition in the EqA may well be met. The law is fairly well established in relation to impairments and provides sufficient guidance to enable us to conclude that an impairment is simply a condition (which is not merely trivial) that interferes with ability of the person to carry out normal day to day activities and affects their mental or physical abilities. Long term means 12 months or it is likely to last 12 months. The fact that a person uses medication to mitigate the effects of an impairment is not relevant as judgment is made as to what would happen if the treatment was not taken.
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