Katie Hendry

Last year, the charity Wellbeing of Women launched the ‘Menopause Pledge Workplace Campaign’. The pledge indicates the employers’ commitment to increasing awareness and support available to their staff who are going through the menopause. The pledge has been signed by over 600 companies, including Asos and Royal Mail.

However, we are still seeing workplace issues and employment tribunal claims in relation to menopause. The recent case of Lynskey v Direct Line Insurance Services Ltd serves as a timely reminder for employers to review their approach to supporting menopausal employees, ahead of World Menopause Day on 18 October 2023.

How could a claim arise?

Although menopause and perimenopause are not defined as protected characteristics under the Equality Act 2010, if a worker is treated unfavourably as a result of their symptoms., there could potentially be a claim under the protected characteristics of age, sex and/or disability.

Recent case and learning points

In Lynskey v Direct Line Insurance Services Ltd, the employment tribunal held that the employer had treated the claimant unfavourably because of something arising from disability, that disability being menopause. The employer also failed to make reasonable adjustments. The Tribunal awarded over £64,000, including £23,000 for injury to feelings.

The claimant had four years of good performance and then there was a sudden drop in performance. She had been suffering from menopause symptoms (including low mood, anxiety and mood swings) which affected her performance. She was diagnosed with hormone imbalance, depression and low mood. The claimant documented this with her employers.

The claimant’s symptoms coincided with the introduction of a new computer system within the business. The employer did refer the claimant to Occupational Health and provided additional training and coaching on the new system, to take account of her health. However, some criticisms were made of her performance during her next 1:1, including that she was struggling to retain information. She was given a performance rating of “need for improvement”, the result of which was no pay rise. She was subsequently given a written warning in relation to her performance and, when off sick, had her discretionary sick pay withdrawn.

Although the employer made some adjustments and provided additional support and training to the claimant, the Tribunal considered it ought to have abandoned the performance procedure entirely, lowered the claimant’s targets and considered a move to a new role. The decisions in relation to the development plan, pay rise and written warning also amounted to unlawful discrimination for something arising from disability.

What should employers do?

Whilst this case is not binding on other tribunals, it demonstrates the risks associated with managing poor performance related to menopause.

Employers should be aware of the importance of supporting staff and they should consider introducing a Menopause Policy. ACAS guidance recommends that employers should implement a Menopause Policy which sets out how staff can raise issues relating to menopause and how these will be handled by the employer.

Having a Menopause Policy can help to demonstrate a recognition of the impact that the menopause can have on staff, as well as creating an open dialogue for employees who, otherwise, may have been reluctant to discuss menopause with their employer.

Katie Hendry is a solicitor at BTO Solicitors LLP