Employer failed to make reasonable adjustments for employee experiencing the menopause

As the Equality and Human Rights Commission (EHRC) publishes guidance for employers on their legal obligations towards employees experiencing menopause symptoms, we look at the case of Lynskey v Direct Line where the Employment Tribunal (ET) considered whether the respondent had satisfied their obligations

What happened?

The claimant worked for the respondent from 2016 and was classed as a ‘high achiever’ in her sales role. However, when she experienced menopause symptoms which included, “brain fog”, concentration difficulties particularly in retaining information, being much less resilient to life’s ups and downs, and being frequently tearful, her performance declined. The respondent was aware of how the menopause symptoms were affecting her.

The respondent moved the claimant into a different position which involved talking to a specific customer group who often had technical questions. Following a review, the claimant was given a rating of “need for improvement” (NFI). As the group wide policy was that all employees who were rated as NFI were ineligible for pay awards, she lost out on a pay increase.

The claimant struggled to access computer systems she had previously been able to use, she struggled for words and was cold and unfriendly at times to clients. There was one particular incident where it was alleged that the claimant had spoken to a client in an unacceptable manner. The claimant’s manager categorised her underperformance as ‘confidence issues’.

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The claimant was taken through a disciplinary process and given a written warning because of her alleged underperformance. Then when the claimant went off sick, the respondent exercised its discretion and stopped her company sick pay. This was because the respondent believed that her level of absence was unsustainable to the business. However, the claimant believed that she had only used half of her entitlement to company sick pay at this point.

The claimant ultimately resigned and brought claims for constructive unfair dismissal, sex discrimination and age discrimination which failed. The claims for failure to make reasonable adjustments and discrimination arising from a disability, however, were successful.

Employment Tribunal (ET)

The ET found that her symptoms amounted to a disability and that a less discriminatory approach could have been taken. This could have included an occupational health referral, consideration of other roles including non-telephony positions, also the call time and non-assurance targets could have been reduced for her. Moving the claimant from her sales role, the ET found, was made under false pretences and more support should have been given to her in her original role in the first instance. The ET also found that the disciplinary process should not have been progressed. The ET stated that the claimant could have expected some reflection by the respondent on whether her performance could have been rated as “good”. This was because she was doing all that she could do to achieve within her limitations. They commented that a profound cause of the claimant’s upset was the respondent’s refusal to accept the claimant’s impairment as mitigation in the disciplinary hearing. This was a theme, the ET found, which continued as they criticised her for not doing enough to help her recovery.

The claimant was, therefore, successful in her claims for failure to make reasonable adjustments and discrimination arising from a disability. The claimant was awarded £64,645.07. Part of the award was because the respondent failed to concede that the claimant was disabled until late in the proceedings.

Takeaway points

It is clear from this case that employers should take care to consider employees who give health issues as a reason for poor or inappropriate performance or conduct, rather than being dismissive of it. This case is a good example of the consequences of failing to do this and the risks an employer faces if it does not take an employee’s mitigation by way of health issues seriously.

This case is also a reminder of the need for employers to consider what reasonable adjustments can be made to the workplace and to process these where appropriate. The Equality and Human Rights Commission (EHRC) has recently released new guidance for employers on menopause in the workplace. As well as setting out employers’ legal obligations, it states that employers should encourage a culture where workers feel able to talk about their symptoms and ask for adjustments at work. Adjustments might include to both physical aspects of the workplace, for example, fresh air or temperature-controlled spaces and a private room or space with less distractions, and to performance targets and expectations.