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Ms Rooney initially instructed solicitors to bring claims against the Council for constructive dismissal, unpaid holiday pay, unpaid overtime, outstanding expenses and re-imbursement of university fees. However, unbeknown to her, they had included in the claim form that she accepted that her work-related stress and menopause symptoms did not amount to a disability under the Equality Act 2010 (EqA). Upon being made aware of this statement, Ms Rooney instantly issued a further claim herself, arguing disability and sex discrimination, harassment, and victimisation relating to the way she was treated by the Council as a result of her menopausal symptoms.
Both claims were considered at a preliminary hearing where the tribunal held that Ms Rooney was not suffering from a ‘disability’ in relation to her menopausal symptoms and her claims for disability discrimination were subsequently dismissed. Ms Rooney appealed to the EAT.
In accordance with section 6 of the EqA, the definition for ‘disability’ is that the individual is suffering a physical or mental impairment that has a substantial (more than minor or trivial), long-term (has lasted 12 months or is likely to last 12 months) adverse impact on their ability to carry out day-to-day activities. In Ms Rooney’s case, the tribunal found that none of her symptoms met this criteria.
The EAT decided that the Employment Tribunal’s previous finding (that Ms Rooney did not seek to rely on the physical symptoms of her menopause) was inconsistent with the evidence that she had given: hot flushes, sweating, palpitations, anxiety, night sweats, sleep disturbance, fatigue, poor concentration, urinary problems and headaches. This was evidence that was not challenged by the other side and the tribunal, in their written decision, did not reject Ms Rooney’s evidence.
The EAT also questioned the tribunal’s decision that the effects described by Ms Rooney were not long term, as that conclusion was not supported by any reasoning. In fact, the tribunal recorded that Ms Rooney had said that her menopausal symptoms started in August 2017 and again, they did not reject this evidence. At the point she resigned in October 2018, on her evidence, the symptoms would have lasted 12 months.
In terms of whether the effects of her symptoms were substantial, the tribunal noted that Ms Rooney was able to provide care for others, which meant she had been able to carry out some day-to-day activities. However, the EAT noted the claimant’s evidence (which again was unchallenged) stated that her symptoms resulted in her “forgetting to attend events, meetings and appointments, losing personal possessions, forgetting to put the handbrake on her car and forgetting to lock it, leaving the cooker and iron on and leaving the house without locking doors and windows”. She also spent “long periods in bed due to fatigue/exhaustion.” She further refers to “dizziness, incontinence and joint pain.” The EAT considered that the tribunal had erred in focussing on the things that Ms Rooney could do rather than what she could not do.
The case has been remitted to the tribunal, with the EAT suggesting the parties should take some time to consider the best way forward.
This case serves as a prime example of some of the difficulties that people suffering with the symptoms of the menopause face when attempting to establish a disability under the EqA. Even in the face of unchallenged evidence to the contrary, Ms Rooney still had to go through the appeal process to pursue her claim. In fact, in this case, the EAT made a point in noting that it was difficult to see how the tribunal could have reached the conclusion that the effect of Ms Rooney’s symptoms were minor or trivial.
The case also highlights that employers should sometimes look beyond the findings of Occupational Health (OH). Here, the Council had referred Ms Rooney to OH, who had said that they did not consider the provisions of the EqA would apply to her. In the face of a large amount of evidence to the contrary, much of which was available to the Council at all relevant times, the EAT clearly felt that the criteria of the legal test had been met. Employers should be mindful of what is actually happening on the ground and factor that into any decisions that are being taken around their internal processes.
See our previous article on the menopause at work here: https://flintbishop.co.uk/insights/mps-launch-inquiry-into-menopause-in-the-workplace/
To ensure your organisation is equipped against unfair dismissal claims relating to the menopause or any other employment-related issue, call us on 01332 226 155 or fill in the form below.
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