As October marks Menopause Awareness Month, with Menopause Awareness Day taking place on 18 October 2023, its important to highlight the recent case of Ms Lynskey vs Direct Line.
Background to the case
Ms Lynskey joined Direct Line in 2016 and was rated as a good performer. In 2019, she began experiencing menopausal symptoms, which affected her concentration and performance. This coincided with the introduction of a new performance management system.
In 2020, due to her continuing menopausal symptoms, she was prescribed anti-depressants, and whilst still suffering, it was noticed that her performance began to decline. She was open with her employer about her health and the difficulties it led to and she received support and coaching to help her; however the issues continued, which resulted in an incident where her behaviour with a customer was unacceptable.
Ms Lynskey was signed off work for two weeks for work-related stress. While she was off, Direct Line offered her a different role, which they believed would be less stressful. She accepted the new role and initially settled in well. However, over time, concerns arose about her efficiency. She was set an action plan to improve her performance by the end of the year, but her performance did not improve.
In her end-of-year review, she was rated as “requires improvement” and did not qualify for a pay rise. She received coaching and a six-day refresher training course. However, by April 2021, her performance remained unsatisfactory, and Direct Line commenced disciplinary action against her.
Ms Lynskey explained that the problems with her performance were due to her menopausal symptoms, but she was still issued with a first written warning and given a “success plan.” She began a further spell of stress-related absence, but this time the GP noted it was home-related.
Direct Line sought medical advice from Occupational Health, who recommended a phased return to work, further training, and removing targets from her role while her menopausal symptoms improved. Occupational Health also noted that in their medical opinion, her health was likely to be a disability for the purpose of the Equality Act 2010.
While Ms Lynskey was off sick, Direct Line made the decision to end her discretionary sick pay, even though she had not exhausted the possible amount that could be paid. Direct Line felt that she was not doing enough to support her return to work.
Ms Lynskey raised a grievance and was successful in receiving 13 weeks of discretionary sick pay that had been withdrawn. However, she went on to resign, claiming constructive dismissal and discrimination on the grounds of disability, age, and sex.
The tribunal found that her health issues relating to the menopause amounted to a disability for the purpose of the Equality Act 2010 and found that Direct Line had treated her unfavourably because of it. It also found that she had been constructively dismissed. However, it did not find that she had been subjected to sex or age discrimination or harassment.
Regarding the disability discrimination claim, the tribunal found that Direct Line had treated Ms Lynskey unfavourably by:
- Giving her a performance rating of “requires improvement” when she was doing all that she could to achieve within the limitations caused by her menopausal symptoms. The tribunal found that Direct Line could have given her the benefit of the doubt, and rated her “good”, which then would have also resulted in a pay increase. Furthermore, the ruling expressed that “requires improvement” is inherently unfavourably if the person, because of their disability cannot improve or meet the required standards.However, the tribunal did acknowledge Direct Line’s argument, that the rating was justified as it needed to deliver a high quality service to its customers, and therefore it was a legitimate aim; it rejected this claim due to the lack of evidence.
- Putting her through a disciplinary process and giving her a warning, even though she had explained that her performance problems were due to her disability. This was because the line manager had failed to follow the company’s own disciplinary policy. Their policy specifically required a manager to consider any underlying issues that needed considering prior to taking formal action. The manager was aware of the health difficulties but chose to ignore them. The ruling flagged that the disciplinary chair should have obtained current occupational health advice before taking a decision.
- Withdrawing her discretionary sick pay, even though she was unfit for work due to her disability was taken without reasonable and proper cause, which amounted to unfavourable treatment. There was no medical evidence that backed up Direct Line’s view that she had not been doing all she could to return to work.
- The tribunal also found that Direct Line had failed to sufficient make reasonable adjustments for Ms Lynskey’s disability. Even though they provided training and support; they could have reduced her targets, looked for a role that didn’t involve interacting with difficult customers, or abandoned the disciplinary process.
- The three incidents (withdrawing sick pay, failing to introduce reasonable adjustments and taking disciplinary action) were likely to damage the implied duty of trust and confidence between the parties and amounted to repudiatory breaches.
- However, Ms Lynskey had waited eight months to resign from the last of these and, in doing so, had affirmed her contract. The tribunal recognised that she had been ill during this time, but she had taken part in other internal processes and had obtained support from her union and could have resigned earlier.
This case is a reminder that employers have a duty to make reasonable adjustments for employees with disabilities. It is also a reminder that employers should be careful not to take disciplinary action against employees who are experiencing performance problems due to their disability.
Specifically, employers should:
- Consider whether an employee’s performance problems could be due to a disability before taking any disciplinary action.
- Make reasonable adjustments for employees with disabilities, even if they are only temporary. Ensure all avenues have been exhausted
- Seek medical advice early in the process; and seek updated evidence before any formal sanction
- Be mindful of the impact that their decisions may have on employees with disabilities.
Further help on the menopause
As we’ve seen from this case, the menopause can be a complicated area to navigate, and costly for employers if they get it wrong. Our expert team can provide you on your policies and practices, to ensure they are inclusive for those employees experiencing menopausal symptoms. Find out more about our HR Packages or Contact Us.
We’ve also created a menopause policy template which you can use in your organisation, download it here.