Discrimination arising from disability relating to the menopause


5th October 2023

Menopause discrimination claims are often complex due to the number of protected characteristics that can be relevant, specifically age, sex or, where an employee’s symptoms have a significant and long-term impact on their normal day-to-day activities, disability.

A recent Employment Tribunal decision in Lynskey v Direct Line Insurance Services Ltd not only illustrates the difficulties an employer can face when trying to fairly manage a disabled employee’s performance issues and the dangers of failing to concede from the outset that a claimant is disabled, but also serves as a reminder to employers that menopause symptoms can amount to a disability under the Equality Act 2010.

Background

Mrs Lynskey had worked as a telesales consultant for six years before resigning in May 2022. A previously strong performer in her role, from 2019 onwards her work was impacted by her menopausal symptoms of low mood, anxiety, poor self-esteem, mood swings, effects on her memory and her ability to concentrate. Mrs Lynskey documented in notes prepared for one-to-one meetings with her manager the effects of her menopause symptoms and treatment she was receiving.

Following a meeting in March 2020 with her manager regarding concerns with her performance, a plan involving weekly coaching was put in place along with an offer of a different role which did not have the challenges of her current sales role. Mrs Lynskey accepted this position, despite the fact it did not include the sales-related bonus as was included in her previous position.

Mrs Lynskey’s performance continued to be criticised, with her performance being rated as having “need for improvement”, resulting in her not receiving a pay rise in January 2021. Formal performance management proceedings were commenced by Direct Line in April 2021, with Mrs Lynskey being signed off sick due to stress by her GP in July 2021.

It wasn’t until August 2021 that Direct Line referred Mrs Lynskey to occupational health, who advised that she was likely to be considered disabled under the Equality Act 2010, and would require a phased return to work following a further six to eight weeks off.

Despite Direct Line’s sick pay policy providing employees who had five or more years of service with 26 weeks’ discretionary sick pay in a rolling 12-month period, Mrs Lynskey was told she would not receive any further sick pay following receipt of 13 weeks. This resulted in further stress and anxiety to Mrs Lynskey, who brought a grievance alleging discrimination in connection with the disciplinary warning, sick pay decision and other matters. Mrs Lynskey was then awarded a further 13 weeks’ sick pay following a grievance hearing and appeal.

In May 2022 Mrs Lynskey resigned due to the way Direct Line had treated her since the onset of her menopause symptoms, subsequently bringing claims for constructive dismissal, discrimination and harassment relating to age and sex. She also brought disability discrimination claims, on the grounds that she had been discriminated against because of something arising in consequence of her disability (section 15 of the Equality Act 2010) and Direct Line’s failure to make reasonable adjustments.

Decision

The Employment Tribunal (“ET”) dismissed her constructive dismissal claim on the basis that Mrs Lynskey had “affirmed” her contract and had delayed in resigning. It also dismissed the age and sex discrimination and harassment claims. However, it did uphold the  discrimination arising from disability and failure to make reasonable adjustments claims.

The ET found that Direct Line failed to take into account its own ‘Resolving Issues at Work’ policy before taking formal action against Mrs Lynskey. This policy included consideration of any underlying reasons for the issue, whether any Equality Act 2010 issues should be considered, whether HR advice had been sought and whether an occupational health report would be beneficial. The ET was clear that a referral should have been made to occupational health in March 2020, when the manager was made aware of Mrs Lynskey’s menopausal symptoms and the impact on her work.

In relation to the requirement to meet the performance standards of the job, this was a provision, criterion or practice (PCP) that put Mrs Lynskey at a substantial disadvantage in comparison with people who were not disabled because she was at greater risk of disciplinary measures.

The ET considered that Direct Line should not have followed a formal performance procedure, as managing the performance of a disabled employee will always be inherently unfavourable where their disability means they cannot improve or meet the required standards. It was further noted that performance graded as “needing improvement” inherently carries the implication that the employee could improve with effort despite their disability and that asking an employee to achieve requirements that would be unachievable in a specified timeframe due to their disability would be likely to seriously damage trust and confidence. Essentially, when performance-managing a disabled employee, employers must be able to show that a stated legitimate aim could not be achieved by a less-discriminatory means.

As for reasonable adjustments, call time and non-assurance targets could have been reduced, a non-telephony role could have been considered and the disciplinary process could have been abandoned.

It wasn’t until January 2023 that Direct Line conceded that Mrs Lynskey’s menopause symptoms resulted in her meeting the definition of disability, as provided for in the Equality Act 2010, and further conceded at the final hearing in April 2023 that it knew, or ought to reasonably have known, of her disability in June 2020. The ET considered it was oppressive for Direct Line to have not conceded disability earlier and reflected this in Mrs Lynskey’s compensation for aggravated damages.

The ET awarded Mrs Lynskey compensation of £64,645, including £23,000 for injury to feelings, £2,500 for aggravated damages, and more than £30,000 for loss of past and future earnings, plus interest.

Comment

The increase in media coverage and interest in the menopause is not going away any time soon, and we are likely to continue seeing more claims of this nature. Research by the Fawcett Society earlier this year found that around 1 in 10 women aged 45-55 left their jobs last year due to menopause. Interestingly, the Labour Party has just pledged (if it is elected to Government) to introduce menopause guidance for small businesses, along with a requirement on larger organisations to have a published menopause action plan.

The case of Lynskey v Direct Line Insurance Services Ltd, whilst not binding on other Employment Tribunals, illustrates the proactive steps employers should take to support menopausal employees in the workplace. Whilst Direct Line did take many steps in attempting to assist Mrs Lynskey, the ET was clear that more should have been done. In light of the ET’s judgement, good practical tips for employers include:

  • Ensuring they have a menopause policy in place;
  • Being aware to the fact that menopause symptoms may amount to a disability under the Equality Act 2010, and reasonable adjustments may be required (where applicable);
  • Providing specific training for managers on how to support employees going through the menopause at work;
  • Adjusting performance policies to individual employees where there are underlying reasons for doing so;
  • Providing a risk assessment of the workplace to minimise health and safety risks; and
  • Ensuring employees are referred to occupational health early, prior to commencing formal processes.

For more details of the steps employers can take to support staff and the new BSI standard on menstruation, menstrual health and the menopause see our recent articles; Many benefits for employers taking proactive approach towards menopause and New British Standard: Menstruation, menstrual health and menopause in the workplace.

If we can assist in the preparation of menopause policies and guidance or the provision of training, please get in touch with our employment lawyers.

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