Many employers spent World Menopause Day 2023 showcasing their support for employees. The spotlight on supporting employees with menopause continues to shine, both from a DEI perspective and also from recent cases in the UK Employment Tribunal which highlight some important learnings. We wrote last year about how women’s health had been in the global headlines, and this year we continued to see increased interest from European employers in the topic of the menopause (as well as issues such as fertility and menstruation), and how this issue affects their workforce.
This year, we’ve seen some significant market developments in the UK:
- More than 2500 employers (including the NHS, Tesco and Royal Mail) have signed up to the Menopause Workplace Pledge.
- The British Standards Institution published new guidance for employers on how to support and manage employees experiencing menopause and menstruation in the workplace.
- We’re seeing more and more clients introduce menopause policies which outline the support available to staff, and behaviours expected from managers. Although it is not a legal requirement to have a menopause policy, this is increasingly seen to be a helpful way to let employees know what support is in place, and generally raising awareness.
- The Equality and Human Rights Commission have announced that they will also be producing guidance for employers.
The UK government this year rejected calls to include menopause as a “protected characteristic” within the meaning of the Equality Act 2010, and we wrote here about why introducing a menopause as a protected characteristic could in fact be challenging. However, recent cases heard by the UK Employment Tribunal have shown the Tribunal may be willing, in certain circumstances, to consider menopausal symptoms as a disability and therefore allow claimants to effectively litigate claims for menopause discrimination. The facts of these cases are worth considering in detail as they have a clear impact on the risk of certain strategies when managing concerns relating to menopause.
1. Lynskey v Direct Line Insurance Ltd
- Ms Lynskey worked as a motor sales consultant for Direct Line, who previously had good performance ratings. In 2019 she began experiencing menopausal symptoms including memory loss, poor concentration and mood swings – she was diagnosed with a hormone imbalance and depression, and her GP prescribed her antidepressants in 2020.
- In 2020, Ms Lynskey was moved to a new role (as this was thought to be less stressful and did not involve direct sales). Shortly afterwards, Ms Lynskey’s appraisal rating was downgraded to “needing improvement” (meaning she received no pay rise), there were customer complaints that she had been rude on calls and in April 2021, her manager recommended disciplinary action be taken. In her disciplinary hearing, Ms Lynskey raised her menopausal symptoms as a mitigating factor but this was not accepted by Direct Line. She received a 12-month written warning and was put on a performance improvement process, after which her mental health deteriorated.
- In July 2021, Ms Lynskey went off sick and an Occupational Health report recommended she have a phased return to work and that she was likely disabled under the Equality Act 2010. Ms Lynskey received enhanced sick pay during this time, but this was stopped after only 13 weeks, despite there being a company policy that an employee could receive 26 weeks’ pay.
- Ms Lynskey then raised a grievance - the warning was not reversed but her sick pay was reinstated. She brought claims in the Employment Tribunal for age, sex and disability discrimination and constructive dismissal.
- Although not successful in her other claims, Ms Lynskey succeeded with her disability discrimination claim. The Tribunal found that Ms Lynskey’s menopausal symptoms amounted to a disability and concluded that Ms Lynskey had been treated unfavourably because of something arising from her disability. The Tribunal particularly noted that Direct Line had not taken Ms Lynskey’s menopause into account when grading her performance, that they had fallen foul of the ACAS Code as her manager had conducted the disciplinary hearing (rather than an independent manager) and did not consider her menopausal symptoms in mitigation and finally that Direct Line should have referred Ms Lynskey to Occupational Health at an earlier stage.
2. Rooney v Leicester City Council
- This case is still being heard in the Leicester Employment Tribunal. The claimant Ms Rooney is suing Leicester City Council for discrimination, harassment and victimisation on the grounds of her sex and disability, after she allegedly received a formal warning over her absences from work despite having told her bosses that she was experiencing menopausal symptoms. The claimant also alleges that her bosses made inappropriate comments about her symptoms.
- At an earlier hearing last year, the Employment Tribunal ruled that Ms Rooney was disabled as a result of her menopause and the Employment Appeal Tribunal later confirmed that menopausal symptoms can amount to a disability for the purposes of the Equality Act.
- The outcome of this case is pending, but importantly, Ms Rooney is backed by the Equality and Human Rights Commission, showing their particular interest in cases which involve potential workplace discrimination regarding the menopause and suggesting that they perhaps will back further, similar cases.
3. Farquharson v Thistle Marine
- The claimant informed her employer she was experiencing serious menopausal symptoms in August 2021. In October and November 2022 she underwent a blood test to check her hormone levels and had a scan to investigate her menopausal bleeding. She suffered from loss of concentration, anxiety and memory loss, and was prescribed antidepressants by her GP.
- In December 2022, the claimant worked at home on certain days due to the heavy snow and due to her menopausal bleeding. One day, she arrived late to work at 2pm, to which her boss remarked “Oh I see you’ve made it in!” and have her a look of “disgust” when she explained her symptoms. A conversation then took place where her manager said things to her like “menopause, menopause a’biddy [everybody] f**king get’s it, just get on wi’ [with] it, that’s your excuse for everything”.
- The claimant raised a grievance, and was also signed off work by her GP for 28 days. Shortly after raising her grievance, the claimant discovered her remote access had been cut off so she could no longer work from home, and no acknowledgement was made of her grievance.
- The claimant was successful in her claims of constructive dismissal, harassment on the basis of her gender and a claim for unpaid wages. The Tribunal found the comments her boss made amounted to harassment, and that the protected characteristic the claimant was able to rely on was sex, given the comments were made due to her menopausal symptoms.
These cases highlight that, even in the absence of a specific protected characteristic of menopause, claimants are still able to succeed in claims for discrimination on account of their menopausal symptoms. To create a better workplace culture in relation to menopause, and to reduce the risk of similar Tribunal claims, employers may consider doing the following:
- Training for managers and improving general awareness around menopause – as shown by the Lynskey case (and in the more stark example in the Farquharson case), there is likely still a lot of misunderstanding and stigma around talking about menopause in the workplace, and supporting employees going through it. Without any training or awareness, there is more scope for employees to make comments which amount to harassment.
- Introducing a menopause policy – before doing so, it’s worth considering what the purpose of the policy is, for example whether this is to signpost resources, creating a line of reporting for employees to raise concerns, set out different breaks/leave policies or set out guidance for managers.
- Considering menopause during performance assessments –employers are under a duty to make reasonable adjustments for disabled employees, and this extends to managing performance. The Lynskey case highlights the difficulty of doing so, and the importance of paying attention as to whether adjustments should be put in place, and that HR/managers are aligned, when an employee raises health concerns. It is useful to consider what impact this may have on the employee’s performance and whether the expectations required of the employee in relation to their performance need to be adjusted.
- Considering flexibility with absence management (and performance management) processes – as above, employers should bear in mind that they may be under a duty to apply adjustments to absence management processes given menopausal symptoms. It’s useful to consider what impact menopausal symptoms have on absence and deal with this sensitively (in contrast to the Rooney case). It can be helpful for employers to open a dialogue with an employee going through these life changes and consider whether to be flexible with absence management procedures to accommodate, to an extent, for potentially sporadic/spontaneous absences.
- The role of occupational health – the Lynskey case highlights the importance of an employer involving occupational health at an early stage in certain cases and giving through consideration to the feedback received.