Introduction
People Management recently reported that Members of the British Parliament Women and Equalities Committee, heard that many women who feel they have been discriminated against because they are going through the menopause have to find legal workarounds to argue their case, often having to rely on rules around disability discrimination (please click here).
A 2019 survey conducted by BUPA and the Chartered Institute for Personnel and Development (CIPD) found that three in five menopausal women- usually aged between 45 and 55- were negatively affected at work and that almost 900,000 women in the UK left their jobs over an undefined period of time because of menopausal symptoms. This could mean that women are leaving businesses “at the peak of their experience” which will “impact productivity”. Women in this age group are likely to be eligible for senior management roles, and so their exit can lessen diversity at executive levels. It can also contribute to the gender pay-gap and feed into a disparity in pensions.
In the UK, under the Equality Act 2010, menopause discrimination is largely covered under three protected characteristics: age, sex and disability discrimination. The Health and Safety at Work Act 1974 provides for safe working, which extends to the working conditions when experiencing menopausal symptoms.
However, what is the position with respect to menopause and legal rights, in Ireland?
Case Law on Menopause in Ireland
Menopause as a disability – McNally v Rotunda
In Ms Siobhan McNally v Rotunda Hospital (EDA2148), Ms McNally brought claims against her employer on grounds of gender and disability alleging victimisation, non-provision of training, failure to provide reasonable accommodation and harassment. On the disability grounds Ms. McNally stated that she suffered from stress and the effects of the menopause. The Rotunda Hospital accepted that Ms. McNally was retired on ill health grounds related to incapacity due to a disability. However, they argued that there was no basis for arguments made in respect of alleged discrimination due to alleged stress or alleged effects of menopause within the six months cognisable period.
Under the Employment Equality Acts
“disability” means—
(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,
(b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness,
(c) the malfunction, malformation or disfigurement of a part of a person’s body,
(d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or
(e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour,
and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future, or which is imputed to a person.
Under questioning from the Court, Ms. McNally asserted that the act of her employer in retiring her was an act of harassment within the meaning of the Acts. She said also that it amounted to a failure to afford her a reasonable accommodation in respect of an imputed disability that might have enabled her to remain in the employment. A final determination of the Labour Court awaits (please click here).
Menopause and age discrimination – Ann O’Kane v Health Service Executive West
In Ann O’Kane v Health Service Executive West (EDA084), Ms. O’Kane argued that the post she was required to eventual compete for was effectively her own post, which she had satisfactorily occupied for four years. On the appointment of the successful candidate, she argued, her original post was suppressed. Ms. O’Kane held that she was discriminated against on age grounds that the multiple references and questions to her going through menopause substantiated that belief.
While the “menopause” remarks were more or less admitted, nevertheless, given the context and timing of this remark, the Labour Court was not convinced that it represents any convincing evidence of discrimination on age grounds. The Labour Court construed the comments to be reasonable in the circumstances of two colleagues having a general discussion, rather than a career conversation.
The Labour Court accepted that the complainant’s age was not referred to at any stage of the process, finding that Ms. O’Kane had failed to establish primary facts from which inferences of discrimination could be drawn.
Conclusion
While the case law on menopause in Ireland is not so firmly developed to provide explicitly clear references for a deliberation, there are case comparators, from which claims for discrimination due to menopause, whether on the grounds of gender, disability or age, could be supported.
Pregnancy-related discrimination case-law from the European Court of Justice (ECJ) has been used to a considerable extent in hearings in Ireland. One of the key cases, Dekker v Stichting Vormingscentrum voor Jong Volwassenen (ECJ 177/88), states that discriminatory acts related to pregnancy are directly discriminatory on the gender ground and that a pregnant woman cannot be compared to either a sick man or a non-pregnant woman. The ECJ found that since pregnancy is a uniquely female condition, where a woman experiences unfavourable treatment on grounds of pregnancy such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directive (76/207/EEC), even though there is no male comparator. Cases of pregnancy-related discrimination taken under the Equality Employment Acts are generally taken on the gender ground but may also be taken on the family-status ground or on more than one ground.
It is therefore plausible that, where a woman experiences unfavourable treatment on grounds of menopause, such treatment constitutes direct discrimination on the grounds of gender within the meaning of the Equal Treatment Directive (76/207/EEC), even though there is no male comparator. Cases of menopause-related discrimination could be taken under the Equality Employment Acts on the gender ground but may also be taken on the family-status ground or on more than one ground.
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