Can unfavourable treatment connected with the Menopause lead to a claim for discrimination arising from disability?

World Menopause Day took place on 18^th October 2023. To mark the occasion, we have produced an article reporting on a recent Employment Tribunal claim concerning the Menopause.

Did you know that Menopausal symptoms could be defined as a disability pursuant to the Equality Act 2010? The Act defines disability as an impairment, which has a substantial and long-term adverse effect on an individual's ability to carry out normal day-to-day activities. In the recent case of Lynskey v Direct Line Insurance Services Ltd the employer conceded that the Claimant's symptoms of, "brain fog, intense anxiety, inability to retain information, emotional instability and memory problems," amounted to a disability.

An employment tribunal, sitting at Leeds, went on to hold that the employer treated the Claimant unfavourably because of something arising in consequence of menopause, and failed to make reasonable adjustments. The employer was aware of the employee's menopause symptoms, which negatively impacted her work performance, leading to an annual performance rating of requiring improvement, despite her previous four years of good performance. Although the employer made adjustments, providing additional support and training, the Tribunal considered that it should have gone further: the disciplinary procedure should have been abandoned, the Claimant's targets lowered and a move to a different role considered. The Tribunal decided that the employer failed to make reasonable adjustments in breach of s.20 Equality Act 2010.

Under s.15 Equality Act 2010 an employer can be liable for unfavourable treatment because of something arising from a disability unless justified in the circumstances.

The performance appraisal rating requiring improvement resulted in the Claimant not receiving a pay increase, and was deemed unfavourable treatment. It was because of something arising in respect of her disability, being connected with difficulties retaining information.

The employer had also given the employee, a formal written warning due to problematic phone calls with customers. This was also unfavourable treatment and was deemed to have arisen from the Claimant's cognitive difficulties connected with Menopause.

Finally, the employer decided to cease paying discretionary sick pay before the employee's entitlement ended, on the grounds that she wasn't being sufficiently proactive in resolving her symptoms. The Tribunal accepted that ceasing pay was unfavourable treatment and that management of symptoms arose from her disability.  

No evidence had been provided to the tribunal on how the performance rating decision, written warning and cessation of sick pay were a proportionate means of achieving the legitimate aims relied on by the employer. Further, no evidence was provided that less discriminatory steps could not have achieved the same aims. The Tribunal considered that a less-discriminatory approach could have been an earlier referral to occupational health, consideration of other roles and accepting the employee's disability as mitigation. As such the Claimant succeeded with all three s.15 claims.

Although the tribunal considered that the Claimant had been entitled to resign in response to the breaches of the Equality Act 2010, it decided that the employee had affirmed the contract by waiting over eight months before resigning. As such the employee's resignation was not deemed to have been in response to the breaches. Nonetheless the breaches were deemed to have caused the Claimant's loss of income and so she was compensated for this.

The Tribunal awarded over £64,000 included £23,000 for injury to feelings.

Having not sought any medical advice the employer faced difficulties establishing that any breaches were justified. This case highlights that when an employee is experiencing menopausal symptoms, employers may wish to seek legal advice regarding their duties under the Equality Act 2010. Our employment team our experienced in supporting Human Resources and management in avoiding Employment Tribunal claims.

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