What Do Menopause, Castes, Copyrights, And Scottish Independence Have In Common? All Have Been Recently Put To The Test Under UK's Equality Law

Human resources teams in the United Kingdom regularly deal with issues that relate to possible discrimination under the Equality Act 2010 (EqA), the law that codifies various anti-discrimination regulations for employers in England, Scotland, Wales and Northern Ireland. Discrimination issues are often tricky, raising issues that are not clear-cut. For example, does a woman suffering from menopausal symptoms have a disability? Is belief in Scottish independence or the sanctity of copyright a protected religion or belief? Is one's "caste" a protected category? Below is an update on key recent developments that help clear up some of these areas of uncertainty.

Menopause and disability

Few employers appear to consider the effects of menopause on their workforce and many might not consider a failure to do so as discriminatory. However, given that 7 out of 10 women are still working at the age of 51 (the average age of natural menopause), it appears to be an area where employers could be more conscious of their responsibilities.

One employer that is ahead of the game in this area is the University of Leicester, which has recently gained press attention for its menopause policy. Staff are encouraged to announce in meetings if they are having a hot flush and to use the word "menopause" at least three times a day in an attempt to break down the taboo and the barriers for women experiencing menopausal symptoms.

There is limited case law on disability discrimination arising from the menopause transition, but the recent case of Davies v Scottish Courts and Tribunals Service confirmed that, at least in some circumstances, it will be considered a disability under the EqA. This means that employers are required to make reasonable adjustments for menopausal women (as is required for other disabilities). Ms. Davies experienced relatively severe effects from her menopause transition, including regular heavy bleeding, stress and memory loss. The parties agreed that she was disabled for the purposes of the EqA and, by all accounts, the employer had generally done a good job of making reasonable adjustments for her. The tribunal found, however, that the respondent's handling of a disciplinary investigation into the claimant's conduct had failed to consider the impact of this disability on her conduct.

As is the case in the United States, the question of whether an employee is disabled will turn on the specific facts of the case. Under the EqA, claimants must...