Direct Line ordered to pay £65,000 to menopausal employee in discrimination claim
A recent case in the employment tribunal could prove very important in the way employers respond to employees who are impacted by menopausal symptoms.
Mrs Lynskey took her former employer, Direct Line, to the employment tribunal alleging that she had been constructively dismissed and subjected to discrimination and harassment.
Background
Mrs Lynskey began working for Direct Line in 2016 as a tele-sales consultant and received good performance ratings.
In 2019, she began experiencing menopausal symptoms which impacted on her concentration levels and performance. Her manager raised concerns with her following an “unacceptable” call with a customer and she was signed off work with work-related stress. Mrs Lynskey’s manager offered her a new role believing that it would be less stressful, and Mrs Lynskey accepted this new role.
Mrs Lynskey initially performed well in her new role but there were still concerns about her efficiency. Mrs Lynskey then received two customer complaints and she was given further training and coaching. At the end of the year, she was rated “need for improvement” and she did not receive a pay increase. She continued to receive coaching and training.
In April 2021, Mrs Lynskey’s line manager started disciplinary action against her. In response, Mrs Lynskey said issues with her performance were due to menopausal symptoms. She was signed off sick due to stress in July 2021.
Direct Line referred Mrs Lynskey to occupational health in August 2021, who recommended a phased return to work and informed Direct Line that Mrs Lynskey was likely to be disabled under the Equality Act. They also said Direct Line should remove performance targets until Mrs Lynskey’s menopausal symptoms had improved.
Direct Line stopped paying Mrs Lynskey her discretionary sick pay, saying she wasn’t doing enough to return to work. Mrs Lynskey raised a grievance and received 13 weeks’ sick pay that had been withdrawn.
She remained unfit for work and resigned in May 2022.
Unfavourable Treatment due to Disability
Direct Line accepted Mrs Lynskey was disabled due to her menopausal symptoms.
The tribunal found that Mrs Lynskey was subjected to unfavourable treatment as a result of her disability when Direct Line rated her as “need for improvement” because she was doing all she could to achieve her aims while limited by her menopausal symptoms, and had previously had good performance ratings.
They also found she was treated unfavourably by being put through the disciplinary process, as Direct Line should have considered any underlying issues before beginning the formal process and should have referred her to Occupational Health.
Failure to make Reasonable Adjustments
The employment tribunal also found that Direct Line failed to make reasonable adjustments such as reducing Mrs Lynskey’s targets or finding her a new role that didn’t involve dealing with difficult customers. The company also should have stopped the disciplinary process.
Constructive Dismissal
Though the tribunal accepted that Direct Line’s treatment of Mrs Lynskey amounted to repudiated breaches of contract as they damaged the trust and confidence between the parties, it found that as Mrs Lynskey waited 8 months since this treatment, she had affirmed her contract; she had accepted their breach. The tribunal therefore found that she wasn’t constructively dismissed.
Compensatory Award
Mrs Lynskey got a new job in 2023 and the tribunal found that if she hadn’t been treated so badly by Direct Line, she would have been able to return to work sooner. She was therefore awarded lost wages earnings.
It also awarded her injury to feelings in the sum of £23,000.
Finally, she was awarded aggravated damages as the company had not accepted she was disabled until shortly before the hearing, despite knowing about her condition very early on. Further, Occupational Health had also informed the company that her symptoms were likely to mean she qualified as a disabled person. Aggravated damages are rare and so this is a warning to employers not to dispute disability when it is obvious.
Practical Tips for Employers
– Adjust your performance policies to your individual employees where there are underlying reasons for doing so, such as health issues
– Consider what elements of a role an employee is struggling with due to any underlying conditions and what can be done to remove that issue. For example, if they are struggling with phone calls with clients, can they be moved to a role with less direct contact with clients?
– Consider referring employees to occupational health early on and before any formal processes are started
If you need advice or assistance with your employment matter, please contact our lawyers on 0207 388 1658 or at lawyers@jfhlaw.co.uk
Katherine Hughes, Trainee Solicitor
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written which may affect the information and advice given therein.
