Menopausal employee wins nearly £65,000 in a successful disability discrimination claim

An Employment Tribunal has held that Direct Line discriminated against an employee with menopausal symptoms, on the grounds of disability, by failing to make reasonable adjustments for her, and by treating her unfavourably because of something arising in consequence of her disability

Facts

In the case of Lynskey v Direct Line Insurance Services Ltd, the claimant was a telesales consultant at Direct Line from 2016 until 2022, when she resigned, claiming constructive dismissal, sex discrimination, age discrimination and disability discrimination.

She had initially received good performance ratings, but in 2019, she began to suffer menopausal symptoms, which affected her memory and concentration. As a result, she struggled to meet required performance standards. In 2020, she accepted a different, lower-paid role, with fewer targets and complaints to deal with. While initially, this went well, she then received complaints about how she had spoken to a customer, and her performance was criticised and rated as “need for improvement” (which meant no pay rise). The company commenced formal performance management proceedings in April 2021. The claimant argued that problems with her performance were due to her menopausal symptoms, but her mitigation was ignored and a first stage warning was imposed.

She was then signed off sick with stress from July 2021. An Occupational Health report recommended a phased return, additional training and removal of targets until her menopausal symptoms improved. It also stated she was likely to be classed as disabled under the Equality Act. Direct Line also refused to continue her company sick pay, even though she had not received the maximum entitlement, as they considered she had not done enough to try to get back to work. She eventually resigned in May 2022.

Decision

The Tribunal dismissed the constructive dismissal, age and sex discrimination claims. However, it upheld her disability claims for failure to make reasonable adjustments and treating her unfavourably because of something arising from her disability (where the treatment cannot be justified).

The Tribunal considered that the required improvement rating was unfavourable treatment because she was unable, due to her disability, to improve or meet the required standards. Similarly, giving her a first warning was unfavourable treatment – particularly as the company’s own policy required managers to consider if there were any underlying issues, such as a disability, causing the performance issues. Additionally, withdrawing sick pay was done without reasonable and proper cause and was also unfavourable treatment arising from her disability.

While the Tribunal acknowledged that the company had made some adjustments, such as additional training and moving roles, it considered it could have done more such as looking for a role that didn’t involve dealing with difficult customers.

The claimant was awarded over £30,000 for loss of earnings, £23,000 for injury to feelings (due to the upset caused by losing her job and the company’s refusal to accept that her menopausal symptoms were causing continued problems with her performance) and £2,500 as aggravated damages (as, despite their occupational health report, the company refused to concede her symptoms amounted to a disability until just before the hearing).

Comment

While this is only a first instance decision and not binding on other tribunals, the case shows that, depending on the symptoms experienced, problems arising from the menopause can amount to a disability. So, just as with all disability-related performance issues, you must ensure that you seek occupational health advice at an early stage, and follow its recommendations, including looking at any reasonable adjustments that can be made, and adapting your sickness and capability procedures as appropriate.

There is no doubt that the menopause is talked about much more as time goes on, and this increased information means the symptoms are now more commonly known. There has been a corresponding increase over the last couple of years in the number of Tribunal cases concerning the menopause. This demonstrates a need for more awareness and support for the menopause at work. We would recommend therefore not only reviewing sickness and capability policies to ensure they are flexible enough to cover menopause issues, but also having a menopause policy that deals with the issues that may arise. We would also suggest incorporating the symptoms and signs of the menopause, and the possible need to consider reasonable adjustments, in training for managers, so that they are equipped to deal appropriately and sensitively with any issues that may arise. Another possibility is to set up menopause peer support groups and/or to nominate menopause champions to give those experiencing symptoms someone to talk to.

Introducing these types of support for those going through the menopause can promote more of a culture of understanding and empathy, such that the taboo around talking about menopause issues, the stereotyping of those experiencing menopause, and a consequential rise in grievances and Tribunal claims, is avoided.

The Just People HR team regularly supports organisations with the sorts of issues that arise from the menopause, so please do get in touch with us if you require specific advice or would like some training in this area.

Telephone: 01768 216775         

Email:  getintouch@justpeoplehr.com