The recent employment tribunal decision in Ms L Waller v Swann Engineering Group Limited found that asking a woman if she was “going through the change” was not, in this case, unlawful harassment.
Although the tribunal rejected the harassment claim, it upheld constructive unfair dismissal and partially upheld victimisation. While employment tribunal decisions do not bind other tribunals or courts and this case seems likely to be appealed, this case offers insight into the issue of menopause at work. More significantly, it demonstrates how legal exposure often arises not from a single remark, but from how an organisation responds once a complaint is raised.
Other recent employment tribunals have found unsupportive workplaces can result in disability discrimination due to menopause. Previous guidance from EHRC has confirmed that menopause symptoms are a disability.
With the Employment Rights Act requiring employers with over 250 employees to produce menopause action plans, firms must prepare for a changing environment in how menopause at work is treated.
What were the facts of the case?
The claimant had been employed since 2022. In April 2024 she received a pay rise and written praise confirming she had achieved agreed targets. On 3 June 2024, her line manager allegedly said: “Is someone going through the change?” “You’re just acting that way because you’re going through the change.”
She later raised concerns with HR, describing the comments as discriminatory. Within weeks, she was placed into a formal capability process and moved to a factory office environment described by the tribunal as noisy and unpleasant. She resigned, alleging constructive dismissal.
The tribunal dismissed the harassment claim. However, it found that the cumulative handling of the situation amounted to a fundamental breach of trust and confidence. Her constructive unfair dismissal claim therefore succeeded.
Why the harassment claim failed
Under section 26 of the Equality Act 2010, harassment requires unwanted conduct related to sex that has the purpose or effect of violating dignity or creating a hostile or degrading environment.
The tribunal accepted that comments about “the change” were made. It found them insensitive. However, context proved decisive. The statutory test requires consideration of the claimant’s perception, the surrounding circumstances and whether it was reasonable for the conduct to have that effect.
Menopause had been openly discussed in the workplace. The health and safety officer had encouraged open dialogue. The claimant herself had previously discussed perimenopause testing with her manager.
The tribunal concluded that, in this context, it was not reasonable to regard the comments as meeting the statutory threshold for harassment. This does not mean menopause-related remarks are legally safe. It shows how fact-sensitive the analysis is. Intent, culture, prior conversations and workplace norms all matter.
Where the case did succeed
The legal risk did not crystallise around the comments alone. It arose in what followed. After the grievance was raised, the claimant was:
- Placed into a formal capability process shortly after receiving positive performance feedback
- Presented with a detailed performance document at the meeting itself, with no prior opportunity to prepare
- Moved to a different working environment without consultation
The tribunal criticised the process as lacking clarity, structure and documented rationale. It found insufficient evidential basis for the sudden performance intervention. In effect, the tribunal concluded that the combination of insensitive comments and a poorly handled performance process destroyed trust and confidence.
Raising a complaint of sex discrimination is a protected act under section 27 of the Equality Act 2010. The tribunal partially upheld the victimisation claim, finding that aspects of the employer’s treatment were influenced by the fact that the claimant had raised discrimination concerns.
This is a recurring theme. Once an employee alleges discrimination, every subsequent decision affecting them carries enhanced legal risk. Even actions that might otherwise be defensible must be demonstrably justified and insulated from retaliatory motive. Documentation, timing and internal communications are often decisive.
The wider context of menopause at work
The introduction of mandatory Menopause Action Plans under the Employment Rights Act 2025 represents a structural shift in how menopause is treated within UK employment law.
While menopause itself is not currently a protected characteristic under the Equality Act 2010, the new statutory requirement for larger employers to implement and report on Menopause Action Plans alters the compliance landscape in three important ways: governance, accountability and evidential risk.
Under the Employment Rights Act 2025, employers with more than 250 employees must design and implement a Menopause Action Plan.
From Spring 2026, employers may voluntarily upload their plans to a Government portal. From Spring 2027, publication becomes mandatory. This introduces a transparency obligation similar in structure to gender pay gap reporting.
Although detailed regulations and guidance are expected to clarify format and reporting metrics, the legal duty is clear: qualifying employers must produce a plan and will be required to make it publicly available.
The precise enforcement framework will depend on secondary regulations, but regulatory scrutiny and reputational exposure are likely consequences of non-compliance.
Interaction with the Equality Act 2010 and the legal position of menopause
The Employment Rights Act 2025 does not create menopause as a standalone protected characteristic. However, it operates against a legal backdrop where menopause-related issues already engage:
- Sex discrimination, where treatment is linked to a woman’s menopausal status
- Age discrimination, particularly where stereotypical assumptions are made
- Disability discrimination, where symptoms have a substantial and long-term adverse effect on normal day-to-day activities
The statutory requirement implicitly elevates menopause to board-level consideration. Organisations required to publish Menopause Action Plans will need to ensure:
- Clear ownership and oversight
- Documented review mechanisms
- Integration with health and safety duties
- Alignment with equality, diversity and inclusion frameworks
A further legal dimension lies in evidential exposure. Once published, Menopause Action Plans become public documents. In litigation, claimants may rely on them to argue:
- That the employer recognised menopause as a workplace risk
- That managers were expected to follow specific procedures
- That commitments were not implemented in practice
In constructive dismissal or victimisation cases, inconsistency between stated policy and managerial behaviour can be persuasive. The Action Plan therefore operates both as a compliance tool and as a potential source of legal scrutiny.
Reasonable adjustments and workplace design
The statutory focus on action plans also reinforces the importance of proactive adjustments. Where menopausal symptoms amount to a disability, employers must make reasonable adjustments. Even where symptoms do not meet that threshold, failure to consider practical adjustments may contribute to findings of unfair treatment or breach of trust and confidence.
Action Plans are expected to address matters such as:
- Temperature control
- Uniform flexibility
- Access to rest facilities
- Flexible working
- Manager capability in handling sensitive conversations
From a legal standpoint, embedding these considerations into a formal plan strengthens the employer’s ability to demonstrate that it took reasonable steps.
Compliance lessons on improving menopause support
Manager training is essential. Open discussion about menopause can be positive. Personalised speculation about an individual’s health can quickly create legal exposure.
Grievance processes must be structured and documented. If an employee signals a discrimination concern, the organisation should confirm in writing how it will be handled and what information is required.
Performance management must be consistent with documented history. A sudden shift from praise to formal capability without clear, recorded deterioration invites tribunal scrutiny.
Any management action following a protected act must be carefully justified. The burden may shift to the employer to demonstrate that discrimination played no part in the decision making.
Cultural initiatives on menopause should be supported by governance safeguards. Encouraging openness does not remove the need for boundaries, training and professional standards.
Looking for more support? Join VinciWorks upcoming webinar on making your workplace more menopause friendly.
Menopause at work: Evidencing positive change for women Wednesday 18 February, 12pm UK
