We have seen a number of cases now where menopause has been held to be a disability under the Equality Act 2010. A recent case, Lynskey v Direct Line Insurance Limited demonstrates how important it is to invest in training to enable line managers to recognise when menopause and poor performance may be connected, and what to do about it.
The claimant had worked for her employer for around four years when the symptoms of menopause started to affect her. For those four years she had always received good performance ratings. In early 2020 she was diagnosed with hormone imbalance, depression and low mood and prescribed antidepressants. The claimant was very open with her employer about her symptoms, including documenting the menopausal symptoms she was suffering in her notes for one-to-one meetings with her manager. When the claimant's performance dropped off (due to her menopausal symptoms) she was moved to another role with fewer targets, but this resulted in a financial loss for her.
The claimant's performance continued to be criticised resulting in her not receiving a pay rise due to her rating of "need for improvement" and formal performance management proceedings having been commenced in April 2021. During these proceedings the claimant was criticised for accepting the change in role despite knowing her menopausal symptoms may impact on it, and her line manager informed HR that there were "no underlying conditions" affecting her performance. She was issued with a disciplinary warning. She subsequently became unfit for work in July 2021. Despite being entitled to 26 weeks of company sick pay, less than one month into her absence the claimant's line manager asked her own line manager if sick pay should be stopped to "encourage" the claimant back to work. Her sick pay was stopped in September 2021 because it was felt the claimant "was not doing enough to improve her situation". She had accessed counselling through the employee support programme and attended a menopause advice session. The claimant resigned on 4 May 2022 but remained unfit for work until February 2023.
Although tribunal claims for constructive unfair dismissal, sex discrimination and age discrimination were unsuccessful, claims of failure to make reasonable adjustments and discrimination arising from disability were upheld. The tribunal criticised the employer for transferring the claimant to the new role rather than supporting her in her substantive role, finding the company could have made eight adjustments to help her in that role.
Although knowledge of disability is required for both reasonable adjustment and discrimination arising from disability claims, knowledge can be imputed - the question is, even if the employer did not actually know of the disability, should it reasonably have known. In this case, it was only conceded by the employer just before the tribunal hearing that they should have known the claimant was a disabled person from June 2020 - the tribunal judgment noting that the impact of the claimant's symptoms on her day-to-day activities being "evident at work and over a sustained period of time".
While there is an increased awareness of menopause in the workplace, how it affects women differs from person to person. In some cases there may also still be a lack of understanding as to how significantly some women are affected, particularly in terms of symptoms that impact on performance such as brain fog and concentration. This case highlights how important it is for line managers and HR professionals to be properly trained to identify and support employees who may be struggling with perimenopausal and menopausal symptoms.
