Written by Brabners LLP
The recent Employment Tribunal case of Mrs M Lynskey v Direct Line Insurance [2023] highlights the difficulties an employer can face when trying to fairly manage a disabled employee who is failing to meet performance standards.
In many cases severe menopausal symptoms could be classed as a disability. It is therefore essential that employers and managers recognise this. The earlier a disability is recognised, the sooner reasonable adjustments can be made, otherwise, there is a risk of discriminating against employees.
The law
Menopause is not a specific protected characteristic under the Equality Act 2010 (EqA 2010) but if an employee is treated unfavourably or put at a disadvantage because of their menopause symptoms, they may be able to bring a claim under the Equality Act. Menopause discrimination claims can be complex because a number of protected characteristics may be relevant in a multi-faceted claim, for example:
- Age – an employee is protected from being treated less favourably because of their age. Most people who experience menopause do so between the ages of 45 and 55, therefore those in this age bracket being treated differently to other age groups may have a discrimination complaint.
- Disability – not all menopause symptoms amount to a disability, but they can do if the symptoms have a substantial impact on the employee’s ability to perform normal day-to-day activities and if the impact lasts (or is expected to last) for 12 months or more. This could include symptoms such as brain fog and hot flushes if they adversely impact an employee’s ability to concentrate, for example. If an employer’s policies or practices, or physical workspace, substantially disadvantages a disabled person, the employer must make reasonable adjustments to mitigate or eliminate the. Employees are still protected from discrimination if their employer could reasonably be expected to know they have a disability (even if the employer doesn’t actually know).
- Sex – where an employee is treated less favourably because of their sex
Facts of the case
An Employment Tribunal has found that an employer discriminated against an employee with menopausal symptoms by failing to make reasonable adjustments. Mrs Lynskey (the Claimant) was employed by Direct Line Insurance (the Respondent) since 2016, but the Claimant resigned in May 2022, alleging that she received discriminatory treatment during her employment.
In the first four years of her employment the Claimant received strong performance ratings, but in 2019 she started suffering from severe menopausal symptoms. The symptoms included struggling with low mood, anxiety, mood swings, low self-esteem, brain fog and poor concentration. The Claimant informed her manager that she was experiencing symptoms and in 2020 the Claimant’s GP diagnosed her with hormone imbalance, depression and low mood for which she was prescribed anti-depressants.
Later in the year concerns were raised by the Claimant’s manager regarding her conduct on customer calls. Together they both decided on a plan which involved additional coaching and subsequently a different role being offered to the Claimant, which she accepted. However, the customer complaints about abrasive calls with the Claimant persisted and she was given further training as a consequence.
In her end of year review, the Claimant’s manager made her views apparent, stating that the Claimant was struggling to get to grips with and understand the role, required a high volume of support, and seemed to struggle to retain information or learn from questions asked previously. The Claimant was denied a pay rise as her performance was rated as ‘need for improvement’, and despite being aware of her menopause symptoms, her manager informed HR that there were ‘no underlying conditions’ when seeking advice on how to move the situation forward. The Claimant was issued with a written warning regarding her performance.
After the receipt of a written warning, the Claimant’s mental health further deteriorated, and a referral was made by the Respondent to occupational health. Their assessment was that the Claimant was likely to be disabled and unable to work for a number of weeks and recommended a number of adjustments. However, after 13 weeks, the Claimant’s manager withdrew her sick pay because she believed the Claimant was not doing enough to improve her situation. The Claimant resigned in May 2022 and subsequently brought claims for constructive dismissal and disability, age and sex discrimination in the Tribunal.
Initially, the Respondent refused to concede that the Claimant was a disabled person, until January 2023 when they accepted that she was disabled as a result of her menopause symptoms. The Claimant’s claims for discrimination arising from disability and failure to make reasonable adjustments were successful and she was awarded almost £65,000 in compensation. The Tribunal concluded that:
“A rating of ‘need for improvement’ inherently carries with it the implication that the claimant was being asked to do something she could, with effort, improve – rather than she was being asked to achieve standards which she could not, because of her disability”.
Comment
This case serves as a reminder to employers and umbrella companies of the complex issues surrounding the management of a disabled employee who is failing to meet performance objectives. In this case the Respondent had provided the Claimant with additional training, daily advice and support, moved her to another role, provided counselling and referred her to occupational health. Nevertheless, the Tribunal decided that the low appraisal rating and written warning given to the Claimant, and the removal of her sick pay, were discriminatory. The Tribunal also noted that proactive steps, such as a referral to occupational health, could have been made sooner.
A recent survey of 2,000 workers has revealed the most helpful adjustments for workers affected by menopause. Of the individuals surveyed, 35% said that their work was affected by negative symptoms associated with menopause. The symptoms largely mirrored those experienced by the Claimant in this case such as mood fluctuations, fatigue, reduced concentration and motivation. Adjustments recommended by the individuals who were surveyed included provision of a private room, fresh air and more focus rooms with fewer distractions. Specific training for managers and HR professionals on how to recognise and support an employee going through menopause at work would allow for such adjustments to be made much more promptly.
Implementing a menopause policy may also be useful in preventing such issues arising and can be a valuable tool which will facilitate more effective communication between employer and employee.
This bulletin is for general guidance only and should not be used for any other purpose.
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