Nathan May-O'Brien is a Solicitor at specialist employment law firm, Collingwood Legal. Nathan considers a recent Employment Tribunal decision on the issue of menopause and disability discrimination.
Menopause related Employment Tribunal claims are increasing. Research by Menopause Expert Group in 2022 found 23 cases cited Menopause in 2021 compared to 16 in 2020.
Menopause is not a protected characteristic under the Equality Act 2010, but some litigants plead their menopause symptoms amount to a disability (which is a protected characteristic). A recent Tribunal case serves as a reminder to employers of the risk of such claims succeeding.
Menopause symptoms and performance
Mrs Lynskey had worked for Direct Line Insurance Services Limited since 2016 as a tele-sales consultant. In 2019, she began to suffer with menopause symptoms including mood swings which began to impact her work performance. Mrs Lynskey was diagnosed with a hormone imbalance, depression and low mood in 2020 and was prescribed antidepressants. She made her manager aware of these issues.
In her 2020 annual review, Mrs Lynskey was graded as “need for improvement” due to her difficulties at work, including customer complaints that she was rude and due to a need for support. This grading resulted in her not receiving a pay rise.
Disciplinary action was taken in 2021 due to continued performance problems. Mrs Lynskey raised the fact that these were linked to her menopause symptoms, but this mitigation was not accepted. She started sickness absence in July 2021 due to stress at home. This resulted in a referral to occupational health and a report detailing that she was likely to be disabled. Whilst on sick leave, Direct Line withdrew her discretionary sick pay despite her not having exceeded her maximum entitlement and on the basis it felt she was not doing enough to return to work.
Mrs Lynskey resigned in May 2022 claiming, amongst other claims, that her treatment amounted to disability discrimination.
What did the Tribunal hold?
Direct Line conceded before the hearing that it knew, or ought to have known, that Mrs Lynskey’s symptoms amounted to a disability in June 2020. The Tribunal awarded aggravated damages of £2,500 on the basis that Direct Line should have conceded this sooner as the impact of her symptoms on day-to-day activities was not opaque but were evident at work and regularly communicated by Mrs Lynskey.
The Tribunal upheld her claims for unfavourable treatment arising from a disability and the failure to make reasonable adjustments. In respect of her performance rating, her employer had not accounted for the limitations caused by her menopause symptoms. The Tribunal also found that these limitations were not accounted for when she was issued with a disciplinary warning. The Tribunal also found that the removal of sick pay had no “reasonable and proper cause” in that medical evidence suggested an incapacity for work for some weeks and no evidence suggested she was failing to take steps to return to work. These instances amounted to unfavourable treatment due to her disability.
The Tribunal also found while steps had been taken to assist Mrs Lynskey, more adjustments could have been made such as reducing her targets or removing her involvement with difficult customers.
What can employers learn from this case?
Direct Line has been ordered to pay almost £65,000 in compensation despite having taken steps to try to assist Mrs Lynskey including additional training and referring her to occupational health. The Tribunal held that occupational health should have been involved earlier when it became apparent her work was impacted by her menopause symptoms.
Not every menopause case will amount to a disability, but this case highlights that steps need to be taken to adjust performance management and disciplinary proceedings to account for employees suffering with menopause symptoms, which may even extend to electing not to follow such procedures.
Case reference: Lynskey v Direct Line Insurance Services Ltd ET/1802204/2022 and ET/1802386/2022
Collingwood Legal is a specialist employment law firm and we provide bespoke training and advice to organisations on all areas of employment law.
www.collingwoodlegal.com
0191 282 2880