Law
Menopause-related discrimination claims can be complex. Several characteristics that are protected under the Equality Act 2010 may be relevant. These may include:
Age: where those of menopausal or post-menopausal age are treated differently from other age groups.
Sex: where a woman is treated less favourably, harassed or disadvantaged because of menopause.
Disability: where an employee’s menopause symptoms substantially affect their day-to-day activities and ability to perform as usual in the workplace to the extent that it can amount to a disability.
In Lynskey v Direct Line Insurance Services Limited ET1802204/2022 and 1802386/2002, an employment tribunal held that an employer had treated an employee unfavourably because of something arising from her disability of menopause and failed to make reasonable adjustments.
Facts
Ms Lynskey ('L') started working for Direct Line ('DL') as a tele-sales consultant in 2016. She received good performance ratings. In 2019, she started to suffer from menopausal symptoms which affected her concentration and performance. In March 2020, her GP prescribed anti-depressants. DL knew of her difficulties and their cause.
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 didn't receive a pay increase. L said that the problems with her performance were due to her menopausal symptoms. She was signed off sick due to stress at home.
Whilst L was off sick, DL 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. She remained unfit for work due to stress and anxiety and resigned in May 2023. She alleged that she had been constructively unfairly dismissed and subjected to sex, age and disability discrimination and harassment.
Decision
An employment tribunal ('ET') decided that DL treated L unfavourably because of something arising from her disability of menopause, and failed to make reasonable adjustments. It knew about her menopause symptoms, which negatively affected her work performance in contrast to her previous four years of good performance. Although DL did make adjustments and provide additional support and training to the employee, it should have gone further. It should have abandoned the performance procedure, lowered the targets and considered moving L to a different role.
The ET dismissed L's constructive unfair dismissal and age and sex discrimination claims. Although the ET tribunal considered that DL had acted in repudiatory breach when it gave L the appraisal rating, a written warning and withdrew her sick pay, it considered that L had affirmed the contract by waiting over eight months before resigning.
Where did Direct Line go wrong?
Knowledge
DL knew about L's difficulties and that they were caused by hormonal changes during menopause. Initially, it was sympathetic and helped her by finding a less stressful role, reducing her targets and providing support and coaching.
Patience
However, L's line manager grew weary of the amount of time she and others were spending supporting L. She decided that L wasn't doing enough to improve or to return to work. That's when the relationship started to unravel.
Information
The line manager should have consulted Occupational Health at an early stage and followed its suggestions. She could also have obtained more information from L's GP (which L had offered) to help her properly understand the condition. If she had taken these steps, L's performance may have improved to the standards required. If not, DL would have been better placed to follow a fair performance management process.
Source: Lynskey v Direct Line.