The Employment Tribunal has ruled that insurance company Direct Line owed damages to a former employee, having failed to make reasonable adjustments for her experiencing symptoms of menopause. The claimant received £64,645 in damages, having resigned from the insurer citing unfavourable treatment.
Trainee solicitor Grace Horvath-Franco spoke to HR Magazine following the ruling, and explains the significance in more detail here.
Background to the tribunal case
The claimant worked at Direct Line from April 2016 and performed well in her role for four years. In 2019 she began to develop menopause symptoms including “brain fog” and difficulties concentrating and retaining information. She also become “less resilient to life’s vicissitudes”, and was frequently tearful. Initially a supportive line manager helped minimise the problems resulting from this, but the situation worsened in 2020.
Following criticisms of the claimant’s performance in May 2020, her managers transferred her to a lower paying role, rather than making adjustments to her existing role. The tribunal heard that the claimant struggled to meet the performance requirements in the new job, finding it difficult to access computer systems and struggling for words when she spoke. On multiple occasions that year, the claimant’s manager criticised her performance, wrongly categorising the claimant’s struggles as a confidence issue.
In January 2021, the claimant’s manager informed her she would not be receiving a pay rise because her performance was rated “need for improvement”. Formal performance management proceedings commenced in April, and in September the claimant’s sick pay was discontinued because “her level of absence was unsustainable to the business”.
Why did this amount to disability discrimination?
Though the claimant had previously explained to her manager that “her disability and associated symptoms of menopause were impacting on her ability to retain information and her emotional stability”, her manager had reported to HR that there were no mitigating reasons for her performance level.
While the tribunal dismissed the claims of constructive unfair dismissal, and sex and age-related complaints, it upheld the claims relating to reasonable adjustments and section 15 Equality Act 2010 (“EqA 2010”) complaints relying on symptoms of menopause. Section 15 EqA 2010 applies where a disabled person is treated unfairly because of something arising from their disability, and it cannot be demonstrated this treatment is “a proportionate means of achieving a legitimate aim.”
The judgment notes that: “In January 2023 the respondent conceded the claimant was a disabled person by reason of menopause symptoms, namely low mood, anxiety, mood swings, poor self-esteem, effects on memory and poor concentration. At the start of this hearing the respondent further conceded that it knew or ought reasonably to have known of the claimant’s disability in June 2020.
“The claimant alleged it ought reasonably to have known by January 2020 because the respondent should have sought occupational health advice from that point on and from March she had reported her symptoms and treatment. Her reasonable adjustments case (despite a valiant effort to bring this forward in submissions) began from 1 July when she moved to a new role.”
What implications does this have for employers?
As demonstrated by this case, there will be instances where the menopause amounts to a ‘disability’ as defined by the EqA 2010. Whether or not the menopause is a disability will always be dependent on the symptoms experienced by an individual and assessed on a case-by-case basis. Ultimately, only an Employment Tribunal can determine whether or not a physical or mental impairment, using the language in the EqA 2010, is a disability.
In order to satisfy the test for disability in the legislation an impairment must have a substantial and long-term effect on an individual’s their ability to carry out normal daily activities. If an individual going through the menopause suffers memory loss, reduced concentration and severe anxiety one can see how the test for disability might be satisfied.
What can employers do to support employees experiencing menopausal symptoms?
An employer must comply with its duties under the EqA 2010, including making reasonable adjustments. We would suggest that all employers consider making reasonable adjustments to assist employees overcome difficulties at work they may experience as a result of the menopause regardless of whether they may have a disability. Examples of adjustments include ensuring a comfortable working temperature in the office; flexibility around start and finish times; and encouraging affected staff to take regular rest breaks.
It is important that staff experiencing the menopause are supported at work. Sophisticated employers will have policies and processes in place to help line managers support staff. Line managers should also receive coaching and training to help them identify the symptoms of menopause and recognise the impact it may have on individuals in the workplace.
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