The front page of the Times on Thursday carried the headline:

Respect the menopause or be sued for disability discrimination, firms told

Employers could be sued for disability discrimination if they fail to make “reasonable adjustments” for menopausal women such as allowing them to work from home or lowering the temperature in the office, the equalities watchdog has said.

After an eventful Wednesday in the House of Commons I was a little surprised that this story merited front-page treatment. In the employment law world this has been an issue that has been discussed for some time – what has changed? How dramatic is the intervention from the Equality Commission?

Not much and not very as it turns out.

The newly published Equality Commission guidance on the menopause says:

If menopause symptoms have a long term and substantial impact on a woman’s ability to carry out normal day-to-day activities, these symptoms could be considered a disability. 

Well yes. I agree with that. A disability is defined in S.6 of the Equality Act as a physical or mental impairment which has a ‘substantial and long term adverse effect’ on someone’s ‘ability to carry out normal day to day activities’. So what the Equality Commission is saying here is that menopause will amount to a disability – if it meets the definition of disability. Almost anything could amount to a disability if it meets the definition (there are actually some interesting exceptions in the Meaning of Disability Regulations including pyromania and exhibitionism but we needn’t go there). A stubbed toe could amount to a disability if it turns out to have a long term and substantial effect on the victim’s ability to carry out normal day to day activities.

I’m not getting at the Equality Commission here. There is increasing awareness of the issues that women going through menopause may encounter in the workplace and guidance on how best employers should engage with those issues is to be welcomed. But useful guidance from the Equality Commission on handling a potentially tricky issue does not normally get the front page treatment, even on a quiet news day.

I was heartened to read that the article is not the sort of ‘woke nonsense’ rant that we would expect from the Daily Telegraph. It seems to be a fair and accurate account of the guidance that has been issued. One clue to the approach the Times takes is that it is welcomed in particular by Mariella Frostrup, Times Radio presenter and Chair of Menopause Mandate. This is obviously an issue that many people at the Times feel strongly about – so good for them.

In terms of case law, a good analysis of menopause in the context of disability is given by the recent Employment Tribunal decision in Chan v Stanstead Airport Ltd In a detailed analysis Employment Judge park held that the claimant was disabled as a result of the symptoms of the menopause, explaining:

The menopause is not in itself an impairment. It is a normal stage in a woman’s life. However, women can experience a wide range of symptoms when going through the peri-menopause and menopause. The severity of those symptoms varies and in some case the impact may be such that the woman meets the definition of being disabled under the Equality Act 2010.

The Judge concludes:

Based on my findings of fact the menopause symptoms did have a substantial adverse effect on the claimant’s ability to carry out normal day to activities at times between July 2017 and when she was dismissed. Some of the symptoms were a lack of concentration, memory loss and fatigue. As a result of these the claimant forgot information that she usually was able to recall easily. She also found it difficult to concentrate on reading, which included being unable to read a book. As described by the claimant, these effects are more than minor or trivial. The claimant needed to set up systems to help her remember everyday information that she usually recalled without difficulty. She was unable to read a whole book for several years, having previously done so regularly.

In that case stress and anxiety were a key feature of the symptoms the employee was complaining about and the Tribunal found that they should be treated as being symptoms of the menopause. Viewing the impact of the symptoms as a whole the conclusion was that the claimant was disabled.

As the Employment Judge made clear, however, all cases need to be assessed individually. There is no assumption that a woman experiencing the menopause will be regarded as disabled. Indeed employers need to be careful not to make any assumptions about how women will react to the menopause. It would obviously be sex discrimination to treat women in their forties or fifties as though they are likely to suffer from fatigue or be unable to concentrate.

Oh – and if anyone wants to argue that because this involves two protected characteristics – sex and age – a discrimination claim is somehow more difficult should read this.