The Employment Tribunal has upheld an employee’s disability claims, after she suffered with menopause-related symptoms.
Discrimination claims relating to menopause can be complex, with several protected characteristics potentially being relevant. To give some examples:
Age: Where those of a ‘typical’ peri-menopausal or menopausal age are treated less favourably than other age groups.
Sex: If a business has policies, practices, or criteria that are harder for a person to achieve/comply with because of their sex.
Disability: Where an employee’s symptoms amount to a disability for the purposes of the Equality Act 2010 and they are treated less favourably than others, including a failure to make reasonable adjustments.
Often, a claimant will bring more than one type of discrimination complaint relating to more than one protected characteristic.
In Lynskey v Direct Line, Mrs Lynskey worked for Direct Line Insurance Services Ltd as a sales consultant from 2016 until her resignation in May 2022. Mrs Lynskey had always had good performance ratings until 2020, when she started to suffer with menopause related symptoms which adversely affected her work performance. Her symptoms included low mood, anxiety, mood swings, poor self-esteem, poor concentration, and poor memory.
In Mrs Lynskey’s end of year review for 2020, her manager gave her a “need for improvement” rating, on the basis that she required a lot of support and struggled to retain information. This rating meant that Mrs Lynskey was not awarded a pay rise. At the time of this review, the manager had already been made aware by Mrs Lynskey of her menopause symptoms and the impact they were having on her performance.
Mrs Lynskey was called to a disciplinary hearing and issued with a formal written warning. At the hearing, Mrs Lynskey advised her manager that she had experienced menopause symptoms since January 2020 and that this had an impact on her ability to retain information, caused brain fog and impacted on her emotional stability. Her manager did not accept this as mitigation for Mrs Lynskey’s underperformance.
Mrs Lynskey’s mental health deteriorated, and she was subsequently signed off work. Despite being eligible for 26 weeks’ sick pay, Mrs Lynskey’s manager withdrew her sick pay after 13 weeks, stating that Direct Line could no longer sustain her further absence. Mrs Lynskey resigned on 3 May 2022, referring to the treatment she had received from her employer over previous years, and brought claims to the employment tribunal for discriminating arising from disability and failure to make reasonable adjustments.
The employment tribunal found that Direct Line ought reasonably to have known of Mrs Lynskey’s disability as early as March 2020, when she first advised her manager of her menopause symptoms and treatment. The tribunal considered that it would have been reasonable for Direct Line to refer Mrs Lynskey to occupational health at that stage. Direct Line had also failed to consider that Mrs Lynskey’s inability to retain information could be a result of her menopause symptoms. The assessment of Mrs Lynskey’s performance in the end of year review and consequent lack of a pay rise was therefore something arising in consequence of Mrs Lynskey’s disability.
The decision to issue Mrs Lynskey with a written warning was unfavourable treatment and was not a proportionate means of achieving a legitimate aim. The tribunal determined that a less discriminatory approach could have been taken; for example, a referral to occupational health or accepting Mrs Lynskey’s disability as mitigation.
The tribunal also held that the decision to cease payment of sick pay was discrimination arising from disability. Evidently, the tribunal found that this decision was motivated by the manager’s erroneous opinion that Mrs Lynskey could have been doing more to return to work.
In addition, Direct Line’s Provision, Criteria or Practice (PCP) of requiring Mrs Lynskey to meet the performance standards of her role put her at a substantial disadvantage compared with persons who were not disabled.
For all these reasons, Mrs Lynskey’s claims for discrimination arising from disability and reasonable adjustments claims succeeded and she was awarded compensation totalling £64,645, including £23,000 for injury to feelings.
This case illustrates potential difficulties an employer can face when trying to fairly manage a disabled employee who is failing to meet performance standards. Interestingly, Direct Line did take a number of steps to assist Mrs Lynskey, but the tribunal was clear in that more should have been done as soon as Direct Line were made aware of her symptoms.
Although the tribunal did not suggest that an employer can never “fairly” performance manage a disabled employee, this decision reminds us that employers who take such action, when their legitimate aim could actually be achieved by alternative, less-discriminatory means, could be at risk of a finding of discrimination.
This judgment also highlights the risks of not accepting from the outset that a claimant has a disability – Mrs Lynskey was awarded an additional £2,500 in aggravated damages for Direct Line’s failure to concede that she was disabled until January 2023, and that it had constructive knowledge of her disability until the final hearing itself.
Considering the sums awarded in this case and with claims such as these becoming more commonplace, it is increasingly worthwhile for employers to implement measures to support employees going through the menopause at work. Having written policies and procedures are a helpful starting point, but it is the putting of those documents into practice and examining the underlying culture of your business that will give a much higher chance of protecting yourself from claims. There are a great many things that employers can do, but aiming to have an open culture where employees feel supported and able to discuss issues they are having; considering suitable reasonable adjustments at appropriate times; and, if possible, providing training for managers on how to support menopausal employees, are to be highly encouraged.
If you would like employment law advice in relation to managing any employees being impacted by the menopause, please do get in touch at [email protected]
