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Can the menopause constitute a disability?

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A recent Employment Tribunal’s ruling suggests that the physical and psychological effects of the menopause could constitute a disability for the purposes of the Equality Act 2010 (the 2010 Act) Ms Davies, a court officer for the Scottish Courts and Tribunal Service, had experienced the onset of the menopause resulting in her becoming severely anaemic, stressed and anxious, and experiencing memory loss.

In February 2017, Ms Davies was prescribed medication (for a separate medical condition), which had to be dissolved in water before being taken. Ms Davies left her medication and a jug of water on her desk during a court adjournment.  On her return, the jug was empty.  Believing she had dissolved the medication in the jug, Ms Davies informed two male members of the public who had been in the court and had drunk the water that they may have ingested her medication. An argument ensued between Ms Davies and these two members of the public.

A subsequent health and safety investigation concluded that the water could not have been contaminated as the medication would have turned the water pink and made it taste like cranberries. Ms Davies had been taking the medication for “a couple of days”. The employer concluded that Ms Davies had lied about her belief that the water contained her medication and had showed no remorse for her actions. Ms Davies asserted she honestly believed at the time of the incident that the medication may have been in the jug of water. However, she couldn’t be sure as one side effect of her menopause was memory loss.

Ms Davies was dismissed for gross misconduct. She brought a claim before the Employment Tribunal for unfair dismissal and disability discrimination.

The Employment Tribunal found that the dismissal was unfair and also discriminatory because of something arising in consequence of Ms Davies’ disability.  The employer could not justify the dismissal as it could not satisfy the Tribunal that it was a proportionate means of achieving a legitimate aim.  Ms Davies was ordered to be reinstated to her previous post and awarded £14,009.84 in respect of arrears of pay and a further £5,000 in respect of injury to feelings.

The judgment does not consider in detail the extent to which a person would need to experience physical and psychological effects of the menopause in order for them to be considered disabled for the purposes of the 2010 Act. The legislation provides that a person has a disability if that person has a physical or mental impairment which has a “substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities”. It is worth noting that it appeared that Ms Davies experienced more extreme and detrimental effects of the menopause than most. This case serves as a useful reminder that it is the extent of any particular illness or condition and the effects of that on the individual that will determine whether the individual could be considered disabled for the purposes of the legislation.