Much has been written about discrimination against women who are going through the menopause. As a man writing an article on a subject that affects only women, it is a daunting prospect. Over the past few years, the menopause has generated much debate and discussion. In 2022 the cross-party Women and Equalities Committee published a report recommending that the menopause become a protected characteristic. Earlier this year, the Government rejected that recommendation, citing concerns about unintended consequences which might inadvertently create new forms of discrimination.
Women who are suffering through the menopause do, however, have other protections upon which they can rely, including sex, age, and disability discrimination. Arguing that you are disabled because you are experiencing the effects of a normal life process might seem counter-intuitive and would be subject to demonstrating that the effects were likely to last for more than 12 months.
Earlier this year the Employment Tribunal had to consider such a claim when Mrs Lynskey alleged she was subjected to age, sex, and disability discrimination and had been constructively unfairly dismissed on account of symptoms arising from the menopause. Essentially, Mrs Lynskey’s performance had been criticised, and she had been transferred from one role to another on the basis that she would be better able to cope as the new role would not require her to meet targets or deal with complaints; it also paid less. She was subject to criticisms in relation to her performance and issued with a written warning in relation to her performance. These were all characterised either as a breach of the duty to make reasonable adjustments and /or harassment on the grounds of age or sex discrimination.
It was conceded shortly before the hearing that Mrs Lynskey was a disabled person by reason of her menopause symptoms which included low mood, anxiety, mood swings, poor self-esteem, effects on memory and poor concentration. It was also conceded that the employer knew or ought reasonably to have known that Mrs Lynskey was disabled.
Mrs Lynskey’s claims of sex and age discrimination were, on the evidence found, unsuccessful, however, her claim for disability discrimination arsing from a failure to make reasonable adjustments succeeded. Damages were awarded to Mrs Lynskey for past and future losses and an award was made for injury to feelings of £23,000 and aggravated damages of £2,500.
Menopause support at work
The menopause is a real and significant issue for employers, who need to be alive to the possible consequences for women who may be experiencing symptoms of the menopause. The difficulty for those affected by the menopause and employers is that it will not be clear whether symptoms being suffered are a disability because it may not be clear whether the symptoms are either a substantial adverse effect of long term. The position is unacceptable for both, leaving employer’s exposed to risk and those impacted not knowing if they have any particular rights.
Given all of the publicity, prudent, forward-looking employers would be well-served creating and publishing policies around how women who believe they are being impacted by the menopause should raise those concerns, how they can expect to be treated, and what steps they can expect their employer to take to reduce or eliminate the adverse effects of the menopause.
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