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In the recent case of Lynskey v Direct Line, Direct Line has been ordered to pay a former employee over £64,000 after they failed to make reasonable adjustments when her role was affected by menopause related symptoms, which included a £2,500 award for aggravated damages due to the employer’s failure to concede that she was a disabled person.
Ms Lynskey worked as a telesales consultant for Direct Line between 2016 and May 2022 and had four years of recorded good performance. However, due to the negativity she received once she made her employer aware of her menopause symptoms, her performance began to be impacted.
Ms Lynskey brought claims for constructive unfair dismissal and disability, age and sex discrimination. However, her claims for constructive unfair dismissal, sex discrimination and age discrimination were not upheld; the Employment Tribunal held that Direct Line had treated her unfavourably because of something arising from her disability of menopause and failed to make reasonable adjustments.
During 2019 and 2020, Ms Lynskey started to develop menopause symptoms such as brain fog and difficulties concentrating. She attended her GP and was diagnosed with hormone imbalance and depression, and was prescribed medication to reduce the effects of her symptoms and, at various points, antidepressants. Ms Lynskey informed her employer of her menopause symptoms in 2020.
Ms Lynskey told the Tribunal that she was expected to meet the normal performance standards in her role but she struggled to meet them because of her menopause symptoms including low moods, anxiety, mood swings and effects on her memory and poor concentration. In June 2020, she was transferred to a different role where she would have fewer targets and customer complaints to deal with, but this came with a financial loss for Ms Lynskey.
In the subsequent months following her transfer, her Line Manager received complaints about Ms Lynskey’s attitude and approach to customers. The complaints were discussed with Ms Lynskey and she requested reasonable adjustments be put in place, such as to adjust the number of customer calls she was required to make and longer breaks in between calls. However, these requests were refused. Ms Lynskey made a further request for refresher training, which was also refused on that basis that there was no budget for such training.
Ms Lynskey’s Line Manager categorised her performance struggles as a “confidence issue” and said she would speak to HR and potentially escalate the situation to a disciplinary matter if she felt Ms Lynskey had spoken to customers in an unacceptable manner.
Ms Lynskey’s performance continued to be criticised and in January 2021, she was informed that she would not receive a pay rise because her performance had been rated as “need for improvement”. Despite being aware that she was experiencing symptoms of menopause, her Line Manager refused to accept that his could be an underlying factor in her deteriorating performance. Instead, Ms Lynskey attended a disciplinary meeting where her Line Manager informed HR that there were “no underlying conditions”, and Ms Lynskey was criticised for accepting a new role despite being aware that the symptoms of menopause could affect her ability to retain information. Further, her Line Manager point out that Ms Lynskey had willingly made the decision to stop taking antidepressants, therefore she felt she could not “accept this as mitigation for her underperformance”. Ms Lynskey was issued with a disciplinary warning.
Following the disciplinary proceedings, Ms Lynskey suffered from panic attacks and on 15 July 2021, she was advised she was unfit for work. In line with Direct Line’s sick pay policy, Ms Lynskey could receive up to 26 weeks of company sick pay in a rolling 12 month period. However, on 11 August 2021, 4 weeks after commencing sick leave, her Line Manager contacted her Superior and asked whether Ms Lynskey’s sick pay should be stopped to “encourage” Ms Lynskey to return to work. However, HR advised that Ms Lynskey be referred to Occupational Health for assessment, to which they confirmed she would be unfit for work for a further 6 – 8 weeks.
Ms Lynskey’s Line Manager and Superior decided to not follow Occupational Health’s recommendation and instead stopped Ms Lynskey’s sick pay on 15 September 2021, as they felt she “was not doing enough to improve her situation” and they could not sustain her further absence. Ms Lynskey had received 13 weeks’ of sick pay by that stage. The removal of her sick pay without prior warning caused Ms Lynskey further stress and anxiety and her psychological health worsened. This decision resulted in Ms Lynskey resigning on 03 May 2022 and remained unfit to work until February 2023.
The Tribunal upheld Ms Lynskey’s discrimination arising from disability claim and determined they could have made 8 suggested adjustments for Ms Lynskey to be more successful in her role, pointing to the fact she had been transferred into a different role “under false pretences” rather than supporting her in her existing one. The Tribunal considered that they should have gone further and stated “the performance procedure should have been abandoned, the employee’s targets lowered and a move to a different role considered”.
Ms Lynskey successfully argued that she was a disabled person in line with the legal definition, i.e. she had “a mental or physical impairment, which has a substantial and long-term adverse effect on their ability to carry out day-to-day activities”. There have been a number of Employment Tribunal cases recently which have determined that menopause symptoms could be held as a disability in accordance with the legal definition.
An employer has a duty to make reasonable adjustments to help an employee if they know, or ought to know, that an individual is likely to be placed at a substantial disadvantage by a provision, criterion or practice (PCP) because of their disability. Ms Lynskey, successfully argued that the requirement to meet the performance standards of her role was the relevant PCP and that this put her at a substantial disadvantage because, in comparison to an employee who was not experiencing symptoms of menopause, she was at greater risk of disciplinary measures.
Ms Lynskey was awarded £23,000 for injury to feelings, £2,500 for aggravated damages due to her employer’s failure to concede that she was a disabled person and more than £30,000 for loss of past and future earnings, plus interest. The Tribunal heavily criticised the “wholesale lack of compassion and understanding” shown by her Line Manager.
Over the last few years there has been an increase in the awareness of the impact that menopause can have on the life of an individual. Therefore, it is critical that employers provide training to managers and HR professionals as to an employer’s obligation.
A menopause policy can be a useful tool to both employers and employees, as it allows the employer to follow a clear policy and it can give employees confidence to communicate what adjustments they need to manage their symptoms. However, care does need to be taken in the drafting of such policies to allow for flexibility.
This area of law can be highly nuanced and fact specific. Therefore, it is recommended that if an employer is faced with similar facts to the above case, they should seek early legal advice on what adjustments need to be made and the potential options available.
Each individual’s experience of menopause will be different, therefore managers need to be aware of the effects that certain symptoms can have.
Menopause can cause an upheaval in many individuals’ personal and working lives, often having a detrimental impact on a person’s physical and mental health. However, by taking advice and legal assistance at the earliest possible stage, Employers can ensure that they have a process in place for supporting employees experiencing menopause and peri-menopause, and create a better, safer, more flexible working environment in the long-term.
This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Employment Team at Cleaver Fulton Rankin for further advice or information.