Can an Employee Claim Being Discriminated against due to Menopause?
The Employment Tribunal have awarded £65,000 in compensation to employee discriminated against due to menopause symptoms.
The facts
In 2016, when Mrs Lynskey began her job at Direct line, her performance rating was “very good” which continued for four years until 2019 when she started to suffer with menopause symptoms including low mood, anxiety, mood swings and poor concentration. In 2020 she was diagnosed with a hormone imbalance and was prescribed anti-depressants. Her manager was kept aware of her symptoms and their effects in regular one to ones. Following concerns of her performance and ability she was transferred to a ‘lifeline’ job, described as a better fit due to complaints of her behaviour.
Mrs Lynskey was performing well in the new role but subsequently received two complaints following which her manager reviewed her to be in “need for improvement”, removing her eligibility for a pay rise. Her employer did implement training and plans for improvement however failed to inform HR of her menopause symptoms instead confirming there were no underlying conditions. Mrs Lynskey’s performance resulted in a disciplinary in which she stressed her symptoms and their effects, ultimately, she was given a written warning in which her manager confirmed they would not accept her menopausal symptoms as mitigation because she had decided to stop taking her anti-depressants.
Mrs Lynskey was signed off work by her GP in June 2021, she was entitled to 26 weeks’ paid sick leave at the discretion of Direct Line. This discretion was removed by her manager after 13 weeks to “encourage” her back to work.
Occupational health did advise Direct Line that Mrs Lynskey was likely disabled and her training and targets should be adjusted until her symptoms had improved.
Mrs Lynskey resigned in May 2022 bringing claims against Direct Line including the successful claim of discrimination arising from a disability and failure to make reasonable adjustments.
The outcome
Mrs Lynskey was awarded £65,000 for her successful claim with £23,000 awarded for injury to feelings. The Tribunal found eight adjustments that could have been made by Direct Line to support Mrs Lynskey. They were clear that Direct Line did take some action to attempt to assist Mrs Lynskey, through repeated training, daily management and referring her to occupational health. However, this should have been years earlier when they became aware of her symptoms in 2020.
Surprisingly, the Tribunal concluded that no formal performance procedures should have taken place because performance-managing an employee with disabilities is inherently unfavourable if a person through disability cannot improve or meet the standards required.
What are the implications for employers?
The decision of the Tribunal has highlighted the difficulties faced by employers when managing a disabled employee who is failing to meet company targets and performance standards. The statement made confirming no performance plan should have been put in place as it was inherently unfavourable for a disabled person who could not improve or meet the standard, was caveated confirming that Direct Line had failed to show a legitimate aim when implementing this.
Employers can implement performance plans but serious consideration should be given on the reasons why and what the business is trying to achieve before doing so.
In addition, employers should provide information on the impact of menopause on overall health and performance as well as training for supervisors and management to ensure employees experiencing menopausal symptoms are supported from the beginning of the situation.
How can we help?
We can assist in providing training materials and sessions for employers, management and staff including a menopause policy drafted for your business.
If you are unsure on where to start or would like further information on how to protect your employees and your business from claims or want to discuss what this judgment might mean for you, please contact one of our Employment team on 01246 555 111 or contact:
Amy Hallam
Head of Employment
t: 0114 3496989
e: amy.hallam@brmlaw.co.uk
Ellie Leatherday
Associate
t: 01246 564002
e: ellie.leatherday@brmlaw.co.uk
Jade Taylor
Trainee Solicitor
t: 01246 560587
e: jade.taylor@brmlaw.co.uk
