Menopause discrimination in the workplace

What matters

What matters next

Ahead of World Menopause Day, we consider when the menopause may be considered a disability in employment law and what can happen when employers fail to fully consider and support employees experiencing symptoms of menopause.

What is the menopause?

The medical definition of menopause (as defined NHS guidance) is when a woman’s periods have stopped for more than 12 months due to lower hormone levels. This usually affects women between the ages of 45 and 55, but it can happen earlier. Perimenopause precedes menopause and may involve similar symptoms to menopause and may last months or years. Anyone with a menstrual cycle may experience menopause, and this can include people who do not identify as women.

Symptoms of perimenopause and menopause vary and may be severe in some cases. Individuals can experience a range of physical and mental health symptoms including anxiety, sleep difficulties, palpitations, joint pain, migraines, low mood, skin changes, UTIs, hot flushes and brain fog. 

Discrimination claims relating to the menopause can be complex. The UK government has confirmed that it does not intend to make any changes to the Equality Act 2010 (‘EqA’) to make menopause a protected characteristic. Therefore, individuals who believe they have been treated less favourably or put at a disadvantage because of their menopause symptoms have to rely on existing protected characteristics and these are typically age, sex, and disability to bring a discrimination claim relating to their treatment. 

Menopause and disability discrimination 

In pursuing a disability discrimination claim, an individual will need to demonstrate that they have or had a disability for the purposes of the EqA at the relevant time. Under the statutory definition, an individual will only be considered disabled if they have a physical or mental impairment, which has a substantial and long-term adverse impact (that it has lasted or is expected to last for at least 12 months) on their ability to carry our normal day-to-day activities. Whether an individual is disabled based on their menopause symptoms will vary and be considered on a case-by-case basis. 

Lynskey v Direct Line Insurance Services

Mrs Lynskey worked as a tele-sales consultant for Direct Line Insurances Services Ltd from 2016 until her resignation in May 2022. In her first four years of employment, she received good performance ratings. From 2019, she experienced severe menopause symptoms, which included low mood, anxiety and mood changes which adversely affected her work and her performance. 

Mrs Lynskey’s GP diagnosed her with hormone imbalance, depression and low mood, prescribing her with antidepressants in March 2020. Mrs Lynskey was very transparent with her employer about this and she started to document the effects of her symptoms and the treatment she was receiving. 

In June 2020 Mrs Lynskey was given an alternative role with reduced targets; however, she was not entitled to the sales-related bonus that she had previously received, which she accepted. Mrs Lynskey did well in the role, gradually coming off her antidepressants. However, in November 2020, customer complaints led to her receiving further training and coaching. 

In her 2020 end of year review, Mrs Lynskey was graded as ‘need for improvement’ which meant she did not receive a pay rise. This was despite Mrs Lynskey’s line manager being aware she was experiencing menopausal symptoms (although the HR team were told that Mrs Lynskey had no underlying conditions). 

A performance management process followed with Mrs Lynskey receiving a first written warning. The manager noted Mrs Lynskey had informed them of her menopause symptoms (since January 2020) but this was not accepted as mitigation for the under-performance. 

Mrs Lynskey was subsequently diagnosed with stress by her GP and from mid-July 2021 was signed off work. She was then referred to Occupational Health (‘OH’), who advised Direct Line that Mrs Lynskey was likely to be disabled. 

After 13 weeks of sick pay (Direct Line could use its discretion to pay up to 26 weeks sick pay in a rolling 12-month period), Mrs Lynskey was told that she would not receive any further payments for her sickness absence. Mrs Lynskey raised a grievance citing alleged discrimination in connection with the disciplinary warning, sick pay and other matters. 

Following the grievance, Mrs Lynskey was awarded a further 13 weeks’ sick pay on 30 March 2022 but the disciplinary warning was not withdrawn. On 3 May 2022, Mrs Lynskey resigned and raised claims for constructive dismissal and disability, age and sex discrimination. 

The ET decision

The ET upheld Mrs Lynskey’s claims for discrimination arising from disability and failure to make reasonable adjustments. It found less discriminatory actions could have been taken by Direct Line instead of imposing the written warning, including referring her to OH, considering other roles and accepting Mrs Lynskey’s disability as mitigation. The ET concluded the decision to stop sick pay was partly motivated by the manager’s mistaken belief that by removing this, it would encourage Mrs Lynskey to return to work. 

The ET also found that Direct Line ought reasonably to have known of Mrs Lynskey’s disability in March 2020 when she informed her manager of her menopausal symptoms and it would have been reasonable to refer her to OH at that stage. 

Other reasonable adjustments could have been considered including:

  • reducing call time;
  • reducing non-assurance targets;
  • looking at a role that didn’t involve interacting with difficult customers; and
  • abandoning the disciplinary process.  

Unsurprisingly Mrs Lynskey was awarded total compensation of £64,645. 

What can employers do to support employees experiencing symptoms of the menopause? 

This case illustrates the importance for employers to increase education and awareness, provide support and understand the impact of the menopause on employees.  It is clear that in some circumstances, the symptoms could amount to a disability, thereby entitling employees to bring discrimination claims relating to treatment and/or dismissal.

There are a range of measures employers could consider in supporting staff including: 

  • training managers on how to support staff experiencing menopause symptoms; 
  • developing a menopause policy or better a toolkit for managers; 
  • appointing menopause and wellbeing champions; 
  • promoting flexible working;
  • providing webinars/resources for employees signposting them to where to seek support/guidance;
  • making adjustments to workplaces including, providing changing facilities;
  • offering support networks for male colleagues so they can openly ask questions about their wives, sisters and partners regarding the menopause; 
  • adapting uniforms and PPE where possible; and 
  • providing menopause specific benefits such as medical insurance. 

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2024.

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