Employment Law Cases
Menopause and disability
An employer treated an employee unfavourably because of something arising from her disability of menopause and failed to make reasonable adjustments.
Ms Lynskey had worked for DL as a sales consultant since 2016. She had an unblemished record with ‘very good’ performance ratings. Three years after starting work she developed menopausal symptoms and told her manager that this was impacting her performance. These symptoms included low mood, anxiety, mood swings, effects on memory and poor concentration. She was diagnosed with a hormone imbalance, depression and low mood and prescribed antidepressants. She provided her manager information about the effects of her menopause symptoms and the treatment that she was receiving. Concerns were raised regarding her performance and with her agreement, she was moved to a different role which was deemed a ‘better fit’ considering her personal and health circumstances. However, she began underperforming and received a performance rating of ‘need for improvement’. Subsequently she had a warning meeting and a disciplinary meeting at which her health condition was not fully considered. After a period of ill health, her sick pay was stopped and she subsequently resigned. She brought various tribunal claims, including discrimination arising from a disability and failure to make reasonable adjustments. Her employer accepted shortly before the hearing that Ms Lynskey was disabled by reason of her menopausal symptoms under the Equality Act 2010 during the period that the alleged discrimination occurred.
The tribunal upheld her disability discrimination claims. In particular, it found that the lower performance rating and the disciplinary warning were unfavourable treatment because of something arising in consequence of her disability. It also held that her employer failed to make reasonable adjustments after it knew about her disability. Some of the adjustments it suggested were reduced call time targets, consideration of a role without telephone duties, abandoning the disciplinary process or accepting her disability as mitigation. She was awarded £64,645 in compensation, which included £23,000 for injury to feelings.
We must note the usual caveat of this only being a tribunal decision and therefore it does not set a precedent that other tribunals must follow. However, it is an indication of the direction of travel for tribunals and the danger faced by employers for failing to consider that the symptoms of menopause can fall within the definition of disability. There have been a number of recent tribunal decisions in which employers have had to accept that symptoms which have or are likely to last 12 months or more and which have a substantial and adverse effect on the employee’s day to day life fall within the definition of a disability for employment law purposes.
In 2022 the Women and Equalities Committee published a report recommending that the menopause become a protected characteristic. Earlier this year, the government rejected that recommendation, citing concerns about unintended consequences which might inadvertently create new forms of discrimination. The CIPD has a very useful resources page on the menopause at work for HR managers. Also, its 2023 Health and Wellbeing at Work survey shows that more employers are looking to provide support in this area.