Recent case of Lynskey v Direct Line serves as a stark reminder to employers that managers must be aware of the complex issues surrounding menopause and the way in which symptoms can impact performance.
Ms Lynskey was employed by Direct Line from April 2016 to May 2022 and had a very good performance rating in her role as a motor sales consultant.
In 2019 Ms Lynskey started to develop menopausal symptoms such as “brain fog” and difficulties concentrating. She also became less resilient to life’s challenges and was often tearful. In March 2020 she attended a GP appointment. She was diagnosed with a hormone imbalance and depression and was prescribed medication to reduce the effects of her symptoms and, at various points, antidepressants. She informed her manager in a Personal Growth Meeting in March. After a “breakdown”, where the Ms Lynskey spoke to a customer in a manner that, even she herself admitted, was unacceptable, she was transferred to another role that “did not have all of the challenges of sales” and had fewer targets. At the time Ms Lynskey welcomed the change and thanked her employer and line manager.
The new role started well but quickly Ms Lynskey’s new line manager received complaints about Ms Lynskey’s attitude and approach to customers; Ms Lynskey’s position was that she needed an adjustment to the number of customer calls she was required to make and longer between each call; that was refused as was her request for refresher training on the basis that there was ‘no budget’ for such training. Ms Lynskey was denied a pay rise as her performance was rated as “need for improvement” and, despite being aware that she was experiencing symptoms of menopause, her line manager refused to accept that this could be an underlying factor in her deteriorating performance. Instead, Ms Lynskey was invited to a disciplinary meeting where her line manager informed HR that there were “no underlying conditions,” and Ms Lynskey was criticised for accepting a new role despite being aware that the symptoms of menopause could affect her ability to retain information. The line manager pointed out that the Claimant had willingly made the decision to stop taking anti-depressants, therefore she felt she could not “accept this as mitigation for [her] underperformance.” A disciplinary warning was issued.
By mid-July Ms Lynskey was experiencing panic attacks and on 15 July 2021 was advised she was unfit for work. Direct Line’s sick pay policy provided that she could receive up to 26 weeks of company sick pay in a rolling 12-month period. She accessed counselling through the company employee support programme, and attended a menopause advice session recommended to her by her line manager. Although appearing supportive and regularly contacting Ms Lynskey, on 11 August her line manager asked her own superior if sick pay should be stopped to ‘encourage’ Ms Lynskey to return to work. On the advice of the HR team Ms Lynskey was instead referred for an occupational health assessment that confirmed that she would be unfit for work for a further 6 to 8 weeks. Her line manager and the superior, however, used their discretion to stop sick pay on 15 September as they felt that she “was not doing enough to improve her situation”. Ms Lynskey resigned on 4 May 2022 and remained unfit to work until February 2023.
Although menopause is not a specified disability under the Equality Act 2010 (EqA 2010) it has been established in a number of tribunal cases that menopause symptoms can amount to a disability under the EqA 2010 (see our blog from 31 January 2022, ‘“Are you menopausal?” – The Tribunal finds that making jokes at an employee’s expense amounted to harassment‘). An employer has a duty to make reasonable adjustments to help an employee if it knows, or ought to know, that an individual is likely to be placed at a substantial disadvantage by a provision, criterion or practice (PCP) because of their disability. Ms Lynskey successfully argued that the requirement to meet the performance standards of her role was the relevant PCP and that this put her at a substantial disadvantage because, in comparison to an employee who was not experiencing symptoms of menopause, she was at greater risk of disciplinary measures.
In addition to an award of damages for injury to feelings and past and future pecuniary losses, Ms Lynskey was awarded aggravated damages due to her employer’s failure to concede that she was a disabled person. She earned £21,000 pa and was awarded a total sum of £65,000. The tribunal heavily criticised the “wholesale lack of compassion and understanding” shown by her line manager.
Every individual’s experience of menopause will be different; managers need to be aware of the effects that symptoms can have. It is a highly sensitive issue where advice at the appropriate stage can allow employers to communicate with employees effectively.
Lessons to be learnt from Lynskey v Direct Line
Training and awareness – although, in recent years there has been an increased awareness of the impact that menopause can have on the life of an individual, training for managers and HR professionals as to an employer’s obligations is critical.
Policies – a menopause policy can be a useful tool to empower employees to communicate what adjustments they need to manage their symptoms and can inform conversations. Care needs to be shown in the drafting of such policies to allow for flexibility.
Reasonable adjustments and the EqA 2010 – this area of law can be highly nuanced and fact specific. Taking early legal advice on what adjustments need to be made and the potential options available is essential.
We are experienced in advising employers on their obligations to make reasonable adjustments and drafting menopause policies. Please contact Linky Trott or any member of the Employment team if you would like advice on an ongoing issue or training on the legal obligations on employers.
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