It’s been nearly two and half years since I first wrote about the legal remedies available for those suffering from the menopause; triggered by my own curiosity as a woman hitting her sixth decade.

At that time there wasn’t much in terms of case law to report on, but it was clear that with individuals in that age group making up a large proportion of the workforce, the situation was a ticking time bomb for employers (read the blog here).

The recent EAT decision of Rooney v Leicester City Council demonstrates that the Courts are still grappling with how to categorise “menopause” within our current legal framework.

In this case, Ms Rooney was a childcare social worker who had worked with the Council since 2006. On developing menopause symptoms in 2017, she had a number of absences which were managed through the Council’s absence management process. Feeling the Council had been less than sympathetic in their approach Ms Rooney resigned in 2018, claiming disability and sex discrimination. Her claims were struck out at a preliminary hearing; the Employment Tribunal finding that her menopausal symptoms were not a disability, and there was insufficient evidence of sex discrimination.

Thankfully on appeal, the EAT overturned the Tribunal’s decision, finding that there had been insufficient reasoning to support their conclusions. The case will now be considered further.

While I have previously expressed a view that the Equality Act 2010 should be capable of offering sufficient legal protection to those suffering from the menopause, Ms Rooney’s predicament does underline the fact that we are still some way off from ensuring those affected by the menopause have their condition recognised and are given appropriate legal protection.

The uniqueness of the condition and lack of understanding of the breadth and depth of the symptoms that can impact functionality may mean that separate legislation is necessary to bridge the gap. The Women and Equalities Committee parliamentary inquiry into menopause in the workplace have been looking at this and may make a recommendation that menopause should be made a separate protected characteristic. I believe this would be a beneficial amendment.

On this year’s world Menopause Day, I’m heartened to see the swell of information now available to people helped by pioneers such as Deborah Garlick of Henpicked and initiatives such as Menopause Café.

I am also very proud to report that Burness Paull has been named Scotland’s first accredited menopause friendly employer.

However, the fact remains that there are still those suffering in silence and resigning from their careers. Productivity and talent is being lost because of lack of understanding and support. Businesses are losing many people who should be in senior positions, bringing insightful and diverse views at Board level.

Recognition by employers of the impact that the menopause has on someone’s capability is a business critical decision: Making small changes, which are often short term, can make the difference between having your star player on the bench for a season or sending your investment into retirement – and who wants that?

You can find out more about how to help create a menopause friendly workplace in our thought leadership paper here.

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