At what point can you raise legitimate concerns with an employee whose performance has declined due to menopausal symptoms? What reasonable adjustments do you need to make and what is a reasonable amount of time to give them to improve? Some guidance is provided in the recent case of Ms M Lynskey v Direct Line Insurance.
What were the facts of the case?
Ms Lynskey started working for Direct Line as a tele-sales consultant in 2016. She was good at her job and received good performance ratings. In 2019, she started to suffer from menopausal symptoms which affected her concentration and performance. In March 2020, she obtained advice from her GP and was prescribed anti-depressants. Her employers were aware of her difficulties and she received support and coaching from her line manager.
In June 2020, Ms Lynskey’s line manager raised concerns about a telephone call she had with a customer which, she agreed was “unacceptable”. She was signed off work for two weeks with work-related stress. A manager, who liked and knew Ms Lynskey well, telephoned her during her sick leave and offered her a different role which she believed would cause her less stress because it did not involve direct selling.
She accepted the new role and, initially, the signs were promising. Ms Lynskey was highly praised for the way she interacted with customers. Her line manager did, however, have concerns about her efficiency but expected this to improve over time and put in place an action plan to “bring her confidence and knowledge in line with the rest of the team by the end of the year”. Ms Lynskey told her employers that she was happy and enjoying her new role and had stopped taking anti-depressants.
She subsequently received two customer complaints and was found to have been abrupt and rude. Her manager told her that it must not happen again and that she believed that the problem was “behavioural” and could warrant disciplinary action. Ms Lynskey became very upset but accepted that she had behaved inappropriately, and that she struggled when speaking to difficult customers. No action was taken against her, and she was given further support via training and coaching.
She was rated “requires improvement” at her end of year review because she needed a high level of support and still struggled with some aspects of the job. This meant that she did not receive a pay increase. She was upset by her performance rating as she’d previously always been regarded as a high performer and had received annual pay increases. She was put on a refresher training course and received good feedback, although problems were noted around the speed at which she handled some calls. She continued to receive coaching.
By April 2021, Ms Lynskey’s line manager lost patience with her progress and started disciplinary action against her. Ms Lynskey said that the problems with her performance were due to her menopausal symptoms. Her manager was unsympathetic and imposed a first stage warning with a “success plan” attached to it. Ms Lynskey went back to her GP and did her best to improve. However, in July she was signed off sick due to stress at home.
She was referred to Occupational Health in August. The report recommended a phased return to work, providing Ms Lynskey with additional training and removing her targets until her menopausal symptoms improved. It also informed the Company that she was likely to be disabled under the Equality Act.
Whilst Ms Lynskey was off sick, the Company decided to stop paying her discretionary sick pay even though she had not reached the maximum threshold, because it believed that she wasn’t doing enough to return to work. Ms Lynskey raised a grievance and received thirteen weeks’ sick pay that had been withdrawn. She remained unfit for work due to stress and anxiety and resigned in May 2023. She alleged that she had been constructively dismissed and had been subjected to sex, age and disability discrimination and harassment.
What was the outcome of the Grievance Investigation?
By the time of the hearing, the Company had accepted that Ms Lynskey’s menopausal symptoms amounted to a disability, but it denied that it had treated her less favourably because of something arising from her disability. The Company further maintained that it could justify its approach and said that it had made reasonable adjustments. The Tribunal disagreed.
Was Ms Lynskey’s performance rating fair?
The Tribunal accepted that the line manager honestly appraised Ms Lynskey but said that rating her as “requires improvement” was unfavourable treatment because the company should have considered giving her the benefit of the doubt and rating her as “good” which would have resulted in a pay increase. She was doing all that she could to achieve within the limitations caused by her menopausal symptoms. It made the point that: “requires improvement is inherently unfavourable if the person, through disability, cannot, in fact, improve or meet the required standards”.
The Company argued that it could justify its rating because it needed to deliver high quality service to customers. The Tribunal accepted that this was a legitimate aim, but rejected the defence on the basis that it had not provided any evidence to show how its decisions about pay helped it to achieve those aims. Nor did it provide evidence to demonstrate how that approach impacted on disabled staff.
Should Ms Lynskey have received a disciplinary warning?
Ms Lynskey had also been treated unfavourably by being put through and given a disciplinary warning. Her line manager had ignored the Company’s own policy which required managers to consider if there were any underlying issues they needed to consider before taking formal action. She was aware of Ms Lynskey’s difficulties but had chosen to disregard them. The Tribunal said that she should have referred Ms Lynskey to Occupational Health and accepted her explanation for the ongoing problems with her performance.
Was the Company right to withdraw Ms Lynskey’s discretionary sick pay?
The Tribunal concluded that the decision to stop her sick pay had been made “without reasonable and proper cause” and also amounted to unfavourable treatment. The Occupational Health report had made it clear that she was unfit for work and there was no medical evidence to support the view that she was not doing enough to return to work.
Did the Company offer sufficient reasonable adjustments to Ms Lynskey?
Even though the Company had provided coaching and additional training, there were other reasonable adjustments it should have offered including; reducing Ms Lynskey’s targets and looking for a role that didn’t involve interacting with difficult customers. It should also have abandoned the disciplinary process.
Was Ms Lynskey right to claim constructive dismissal?
The Tribunal accepted that the three incidents set out above were likely to damage the implied duty of trust and confidence between the parties and amounted to repudiatory breaches. However, Ms Lynskey had waited eight months to resign from the last of these and, in doing so, had affirmed her contract. The Tribunal recognised that she had been ill during this time, but she had taken part in other internal processes and had obtained support from her union and could have resigned earlier.
What was the Tribunal decision on Ms Lynskey’s sex and age discrimination claims?
Ms Lynskey alleged that some of her line manager’s comments which referred to her confidence had been made because of her sex and/or age. The Tribunal disagreed and found that these comments directly related to her new role and were appropriate.
How much compensation was Ms Lynskey awarded by the Employment Tribunal?
Ms Lynskey remained unfit to work until 2023 when she started a new job. The Tribunal ruled that if she had not been treated so badly, she would have been able to return to work sooner and awarded her just over £30,000 to represent her losses.
It also awarded her £23,000 for injury to her feelings (middle Vento band). She was “devastated” by the loss of her job, had experienced eight months of profound emotional distress because of the Company’s refusal to accept that her declining performance was due to menopause, and the general view that she wasn’t doing enough to help her own recovery.
She was also awarded aggravated damages of £2,500 because the Company did not accept that she was disabled until a couple of months before the hearing. It knew about her condition at an early stage and it’s Occupational Health report had stated that her symptoms were likely to qualify her as a disabled person. It also had medical evidence which supported this. The Tribunal said its delay in conceding this was “oppressive” and put an additional burden on Ms Lynskey at a time when she was acting as a litigant in person. It was also an additional source of distress.
In total, Ms Lynskey was awarded £64,645.00 in compensation which included interest.
Direct Line were aware of Ms Lynskey’s difficulties from the outset and knew that they were caused because of hormonal changes during the menopause. Initially, they were sympathetic and took steps to help her by finding a less stressful role, reducing her targets and providing support and coaching.
However, her line manager grew weary of the amount of time she and others were spending supporting Ms Lynskey and formed a view that she wasn’t doing enough to improve or to return to work. That’s when the relationship really started to unravel.
The line manager should have consulted Occupational Health at a much earlier stage and followed its suggestions. She could also have obtained information offered by Ms Lynskey’s GP to help her to properly understand the condition. If she had taken these steps, it’s possible that Ms Lynskey’s performance could have improved to the standards required. Even if she hadn’t improved, the Company would have been on firmer ground in terms of going through a fair performance management process.
If you are also faced with discrimination on the grounds of age, sex, or disability in your workplace, our solicitors are available to provide you with the legal advice you need.
