Was an employee treated unfavourably by her employer, due to their failure to take account of the impact of her menopause symptoms, when considering her performance?
Yes, held the Employment Tribunal, in Lynskey v Direct Line Insurance Services Ltd.
Background
Mrs Lynskey worked for Direct Line Insurance Services Ltd (Direct Line) between 11th April 2016 and 3rd May 2022 as a motor sales consultant.
During the first few years of her employment, she received good and very good performance ratings in her role. In 2019 Mrs Lynskey began to suffer from menopause symptoms including “brain fog”, concentration difficulties, and issues in retaining information. She also struggled to adjust to change and often became tearful. These symptoms adversely affected her work performance. In March 2020, Mrs Lynskey's GP diagnosed a hormone imbalance, depression and low mood and prescribed antidepressants.
Mrs Lynskey began working in the telematics team in July 2020, following concerns about her conduct on a customer call in the previous month. Mrs Lynskey initially improved and gradually came off her antidepressants. However, following two further customer complaints about her rude manner in November that year, she advised her manager that she felt coming off her medication may not have been the right decision, and she was given further training and coaching.
In her end of year review for 2020, Mrs Lynskey was graded as "need for improvement" for the first time since joining Direct Line, which meant that she did not receive a pay rise. After a brief improvement in February 2021 further issues arose and her manager then sought advice from HR on how to manage Mrs Lynskey's performance but failed to mention her menopause symptoms. Instead, the manager advised HR that there were no underlying conditions.
Mrs Lynskey was given a first written warning, with a further "success plan" to run for three months following a disciplinary hearing on 30 April 2021. The manager stated that she could not accept Mrs Lynskey’s menopause symptoms as mitigation for her under-performance because she had taken on a new role despite her symptoms, had taken the decision to stop taking anti-depressants and had only consulted her GP again recently.
Mrs Lynskey's mental health deteriorated after receipt of the written warning and she was signed off work, in July 2021, due to stress at home.
On 20 August 2021, Direct Line referred Mrs Lynskey to occupational health, who advised that she was likely to be disabled, she would be unable to return to work for a further six to eight weeks and would require a phased return when she was fit to do so. Occupational health also recommended discussing her stress issues, reviewing training needs, and an adjustment to targets until Mrs Lynskey's menopause symptoms had improved.
The report also noted that Mrs Lynskey was unable to take hormone replacement therapy and was not taking any other medication.
Direct Line's sick pay policy provided that an employee could receive up to 26 weeks' discretionary sick pay in a rolling 12-month period, once they had achieved five years of service.
On 15 September 2021, after having received only 13 weeks of sick pay, Mrs Lynskey was advised by her manager that she would not receive further sick pay. This caused Mrs Lynskey further stress and anxiety and her health worsened.
On 19 November 2021, Mrs Lynskey brought a grievance alleging discrimination in connection with the disciplinary warning, the sick pay decision and other matters. Following an investigation, grievance hearing and appeal, Mrs Lynskey was awarded 13 weeks' sick pay on 30 March 2022.
However, the disciplinary warning was not withdrawn, and Mrs Lynskey remained off sick with stress and anxiety until her resignation on 3 May 2022, referring to the treatment she had received over the previous years, Direct Line's failure to make reasonable adjustments and alleging disability, age and sex discrimination. She subsequently brought claims for constructive dismissal and disability, age and sex discrimination in the tribunal.
Law
Discrimination: The Equality Act 2010 sets out a number of protected characteristics.
The following characteristics may be linked with menopause discrimination: age, sex and disability.
In respect of disability, where an employee's menopause symptoms are sufficiently severe to amount to a disability, employees are protected against less favourable treatment arising from disability – unless it is a proportionate means of achieving a legitimate aim - and employers must make reasonable adjustments to alleviate disadvantage caused by their application of a provision, criterion or practice or physical features of premises. Failure to do so may amount to discrimination.
Constructive dismissal: To establish a constructive dismissal, an employee must prove, on the balance of probabilities, that:
• There was an actual or anticipatory breach of an express or implied contractual term by the employer.
• The breach was sufficiently serious to justify their resignation.
• They resigned in response to the breach.
• They did not "affirm" the contract following the breach, for example, by delaying too long in resigning.
Decision
The tribunal upheld Mrs Lynskey's claims for discrimination arising from disability and failure to make reasonable adjustments. However, it dismissed her constructive dismissal, age and sex discrimination claims.
Direct Line stated that the decisions taken by them were with a view to achieving legitimate aims of:
• needing to ensure that employees were performing in their role in order to deliver a high quality and efficient service to customers,
• to run an efficient and profitable operation, and
• to balance the needs of its business alongside Mrs Lynskey's need for adjustment to her role or duties.
However, 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 those legitimate aims.
There was also no evidence provided that less discriminatory steps could not have achieved the same aims – such as an earlier referral to occupational health, consideration of other roles and accepting Mrs Lynskey’s disability as mitigation.
Although the tribunal considered that Direct Line did act in repudiatory breach when it took those steps, it considered that Mrs Lynskey had affirmed the contract by waiting over eight months before she resigned, therefore her constructive unfair dismissal claim was not upheld.
The tribunal awarded Mrs Lynskey over £64,645 including £23,000 for injury to feelings. An additional £2,500 for aggravated damages was also awarded, relating to Direct Line’s refusal to accept Mrs Lynskey’s disability until the final hearing in April 2023, despite evidence showing that they were clearly aware of her health issues.
Comment
Christine Jamieson, Senior Paralegal in our Employment team comments:
“Although only an ET decision, so not binding on other tribunals, the case clearly shows the challenges an employer can face when trying to fairly manage a disabled employee who is struggling to meet performance standards.
“Whilst Direct Line did take many steps to help Mrs Lynskey, the tribunal was clear that they expected more should have been done.
“It was found that Direct Line did have a ‘Resolving issues at work’ policy in place which required managers to consider, before taking formal action,
• whether any underlying reasons for the issue had been identified
• whether there was anything that had not been considered
• whether any Equality Act issues should be considered
• whether HR advice had been sought, and
•whether an occupational health report would be beneficial.
“Such a checklist is really helpful to have in place, but unfortunately it was not applied in this case.
“Referral to Occupational Health, or seeking to obtain further information by way of a GP Report, should be sought at an early stage, and as soon as a possible disability becomes known. This will allow employers to give full consideration, record and act appropriately on the relevant issues.
“In this particular case the tribunal suggested formally performance-managing a disabled employee will always be unfavourable where they cannot improve or meet the required standards because of their disability. Although it can of course be done, it is crucial to be able to show that there is no less-discriminatory alternative that will achieve the results required.
“It is therefore good practice to provide training for managers on how to handle disability related issues when dealing with performance concerns, and in particular to support an employee going through the menopause at work, which will help to avoid such issues arising. Implementing a menopause policy is a good starting point.”
