UK: Discrimination Because Of Menopause

We consider the case of Lynskey v Direct Line Insurance Services Ltd which held that an employer had treated an employee unfavorably because of something arising from her disability and failed to make reasonable adjustments. The disability arose from the symptoms of menopause.

Background

The claimant, Mrs Lynskey worked for Direct Line Insurance Services Ltd as a tele-sales consultant from 2016 until her resignation in May 2022. During the first four years of her employment she received a good performance rating. In 2019 she started to suffer from menopause symptoms which had an impact on her performance at work. The claimant's symptoms included low mood, anxiety, mood swings, poor self-esteem, effects on memory and poor concentration. In March 2020 the claimant was diagnosed by her GP as having a hormone imbalance, depression and low mood; she was prescribed antidepressants. The claimant advised her manager of the menopause symptoms. The performance issues led to the claimant receiving a written warning and, ultimately, because of the her employer's conduct she resigned and brought claims for constructive unfair dismissal, failure to make reasonable adjustments, discrimination arising from disability, age and sex discrimination.

Direct Line initially did not accept the claimant was disabled within the meaning of the Equality Act 2010. In January 2023 Direct Line conceded she was disabled because of her menopause symptoms. At the commencement of the final hearing in April 2023 Direct Line further conceded that it knew, or ought reasonably to have known, of the claimant's disability in June 2020.

The legal bit

Claims brought by employees who have been grappling with menopause symptoms can be complicated because several protected characteristics may be relevant and include:

• Age: where those of menopausal or post-menopausal age are treated differently to other age groups;
• Sex: where a woman is treated less favourably, harassed because of symptoms related to the menopause; and/or
• Disability: where an employee's menopause symptoms have a substantial impact on their day-to-day activities. In this case
• the employer may have an obligation to make reasonable adjustments for them; and / or
• an employee is protected against discrimination arising from disability which occurs where:
• A treats B unfavourably because of something arising in consequence of B's disability; and
• A cannot justify that treatment, i.e. show that the treatment was a proportionate means of achieving a legitimate aim.
• To establish a constructive dismissal, an employee must prove, on the balance of probabilities, that:
• there was an actual or anticipatory breach of an express or implied contractual term by the employer;
• the breach was sufficiently serious to justify the employee's resignation;
• the employee resigned in response to the breach; and
• they did not "affirm" the contract following the breach, e.g. by delaying too long in resigning.

Decision

The employment tribunal upheld the claimant's claims for discrimination arising from disability and failure to make reasonable adjustments. It dismissed her constructive dismissal and age and sex discrimination claims.

Discrimination arising from disability

The employment tribunal upheld the claimant's discrimination arising from disability claim in relation to the 2020 annual review performance rating of "need for improvement". The claimant's manager had stated in the performance review that she struggled to retain information. This was as a result of the claimant's menopause symptoms of inability to retain information and poor memory. The assessment and consequent lack of a pay rise were therefore something arising in consequence of the claimant's disability. The tribunal took into account that:

• the claimant had, for the last 4 years, had good performance ratings;
• she had informed Direct Line of the reasons why she struggled to retain information and this was because of symptoms of the menopause;
• the assessment had direct financial impact on her pay and pension.

The tribunal held that:

No 'justification' evidence was provided to the employment tribunal on how the rating and pay decision was a proportionate means of achieving the legitimate aim. The tribunal noted that no evidence was provided of why less discriminatory steps could not have been taken, how Direct Line's policy or decision-making were adjusted for the claimant or disabled people generally, and no evidence of the consequences for overall profit or customer service if the claimant had been given a higher performance rating and pay rise.

The employment tribunal further upheld the claimant's discrimination arising from the disability claim in relation to the April 2021 written warning. Applying the same analysis as for the 2020 performance rating, the warning was unfavorable treatment because of something arising in consequence of the claimant's disability. The menopause and her symptoms had been mentioned many times by the claimant in the disciplinary meeting. Imposing the warning was not a proportionate means of achieving Direct Line's legitimate aims.

The tribunal concluded that a less discriminatory approach could have been taken instead of imposing the written warning: a referral to occupational health, consideration of other roles and accepting the claimant's disability as mitigation.

Failure to make reasonable adjustments

The tribunal held that Direct Line ought reasonably to have known of the claimant's disability in March 2020 when she first advised her manager of her menopausal symptoms and treatment after the visit to her GP. It considered that it would have been reasonable for Direct Line to refer her to occupational health at that stage.

It held that from April 2021, Direct Line's provision, criterion or practice ("PCP") of requiring the claimant to meet the performance standards put her at a substantial disadvantage compared with persons who were not disabled. In April 2021, the disadvantage the claimant faced in meeting the standards of her role while struggling with her menopause symptoms should have been recognized and adjustments made. For example, call time and non-assurance targets could have been reduced, consideration could have been given to a non-telephone role, the disciplinary process could have been abandoned and the claimant's mitigation that she was disabled accepted.

Remedy

The tribunal awarded the claimant compensation in the sum of £64,645. This included £23,000 for injury to feelings. It further awarded £2,500 aggravated damages in relation to Direct Line's failure to concede that the claimant was disabled until January 2023, and that it had constructive knowledge of her disability until the final hearing commenced in April 2023.

Comment

Although this decision is not binding on other tribunals, it illustrates the difficulties which an employer can face when trying to fairly manage a disabled employee who is failing to meet performance standards. Direct Line did take some steps to assist the claimant, but the tribunal was clear that more should have been done, including an earlier referral to occupational health.