Whilst potentially considered a taboo subject in the past, there is now far more conversation about menopause and, with employment rates for women aged 50 – 64 increasing from 46.9% in 1992 to 66.3% in 2023, more women are experiencing menopause during their working lives than ever before. The recent Employment Tribunal case of Lynskey v Direct Line Insurance Services Ltd demonstrates that menopause symptoms can amount to a disability under the Equality Act 2010 (EqA) and serves as a reminder for employers to evaluate their current approaches to women experiencing menopause to avoid potential claims.
Does menopause fall under the EqA?
It is possible that menopause can be a disability and to determine this, a Tribunal would need to consider whether the symptoms of menopause satisfy the test for disability which is whether the impairment has a substantial and long-term adverse effect on a person's ability to carry out day-to-day activities.
In this case, the Claimant, Mrs Lynskey, who had previously been a strong performer in her role, began experiencing menopausal symptoms which impacted her through low mood, anxiety, poor self-esteem, effects on memory and her ability to concentrate. In turn, these had an adverse effect on her performance at work.
As a result of the Claimant's failure to meet performance standards, the company did take steps to support the Claimant including providing her with additional training, daily management advice and support as well as moving her to a less-challenging role. However, due to her continual struggles to meet the required standard, she was subject to disciplinary proceedings following which she received a formal written warning. The Claimant subsequently resigned due to her treatment by the company.
The Claimant's manager, who was well aware that she had been experiencing menopausal symptoms throughout the year because she had told her, did not mention these symptoms to the company's HR team and instead advised them that there were no underlying conditions.
The Claimant subsequently brought claims against the company, including for constructive unfair dismissal, sex discrimination and age discrimination. Although these were not upheld, the Tribunal found her to be disabled for the purposes of the EqA. The Claimant therefore succeeded in her claims for failure to make reasonable adjustments and discrimination from 'something arising' out of her disability and was awarded compensation totalling £64,645.
Discrimination arising from disability
As part of the Claimant's treatment by the company, she was graded as "need for improvement" within her 2020 annual review which meant she did not receive a pay rise. This, the Tribunal held, was discrimination arising out of her disability. The Tribunal held that this assessment and consequent lack of pay rise was clearly something arising in consequence of the Claimant's disability on her symptoms.
Failure to make reasonable adjustments
The Tribunal found that for the Claimant to meet the performance standards of the job as set out, she would be placed at a substantial disadvantage compared with people who are not disabled. To this, the Tribunal held that the company should have recognised the disadvantage the Claimant faced in doing her job with menopausal symptoms and as such, reasonable adjustments should have been made.
The Claimant was a tele-sales consultant and the Tribunal found that the company could have reduced her call time and non-assurance targets, consideration could have been given to an alternative non-phone call role (particularly given a mailbox team existed) and the disciplinary process could have been abandoned and mitigation accepted.
Interestingly, the company only conceded that the Claimant met the definition of disability a few months before the initial hearing. The company's failure to acknowledge this led to the company being ordered to award the Claimant an additional £2,500 in compensation for aggravated damages.
What should employers be aware of?
Employers should ensure they take the time to look into situations where an employee is not performing to a previously high standard. Within this review, employers should consider all possibilities, for example there may be mitigating circumstances for the change in standards. Once this exercise has been carried out, employers should then consider practical steps to support the employee.
What practical steps can employers take?
- Consulting occupational health at an early stage and adopting the suggestions within the occupational health report.
- Obtaining further information from the employee's GP to help properly understand the situation, if appropriate.
- Adopting policies in line with the guidance and recommendations set out in the British Standards Institution's 'Understanding the Menopause and Mental Health' – a summary of which can be found here.
- Providing effective training for managers on how to support an employee going through menopause in order to help to prevent issues arising.
This case is further confirmation by the Tribunal that menopausal symptoms may amount to disability and, depending on the circumstances, women may be able to bring disability discrimination claims against their employers for failing to comply with their responsibilities under the EqA. Therefore, going forward, employers will need to ensure they are identifying any adjustments that may need to be made and that they take all reasonable steps to prevent any discrimination against women experiencing menopause.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.