Case Law Update – Reasonable Adjustments for a Menopausal Employee – Lynskey v Direct Line Insurance

Employment Partner, Sally Bird looks at the reasonable adjustments for a menopausal employee.

Ms Lynskey worked at Direct Lane between 2016 and May 2022 when she resigned.

Ms Lynskey struggled to meet the normal performance standards of her role, as a result of her symptoms of the menopause, which, it was found, amounted to a disability.

Specifically, Ms Lynskey had comments made about her, such as she was “constantly trying to keep [her] head above water” together with having threats of disciplinary action made against her, and she was transferred to a new role in June 2020. Ms Lynskey had previously informed her line manager that her disability and associated symptoms of menopause were impacting her ability to retain information and her emotional stability. Ms Lynskey also received a written warning in relation to her performance.

When Ms Lynskey was absent on account of sickness, her line manager refused to exercise her discretion in relation to continuing her sick pay due to her number of absences, which were deemed to be unsustainable to the business.

Ms Lynskey was later referred to Occupational Health and the recommendations were that she was to have a phased return to work, provision of additional training and removal of her targets until the menopausal symptoms improved. Occupational Health also informed Direct Line that she was likely to be disabled under the Equality Act.

Ms Lynskey resigned and brought claims for constructive unfair dismissal and Equality Act complaints in relation to sex and age, together with failure to make reasonable adjustments and discrimination arising from disability.

Findings

The Employment Tribunal upheld the claims for failure to make reasonable adjustments and discrimination arising from disability. It was held that although Direct Line had provided coaching and additional training, there were other reasonable adjustments that could have been offered, including:

• Abandoning the disciplinary process and accepting Ms Lynskey’s mitigation;
• Reducing Ms Lynskey’s targets in relation to call time together with her non-assurance targets; and
• Looking for a role for Ms Lynskey that did not involve interacting with difficult customers, for example considering a non-telephony role.

Direct Line refused to concede that Ms Lynskey was disabled until a late stage in proceedings. This was despite knowing about her condition because of the Occupational Health report, which stated her symptoms were likely to amount to a disability. In addition, Direct Line also had access to Ms Lynskey’s medical evidence. The Tribunal therefore made an award of aggravated damages on the basis that the delay in conceding was “oppressive” and that there was no reasonable explanation offered for this delay. Further, the Tribunal found that this had been an additional burden on Ms Lynskey at a time when she was acting as a litigant in person, together with adding an additional source of upset.

Ms Lynskey was awarded £23,000 for injury to feelings, £2,500 for aggravated damages and £30,000 for loss of past and future earnings, plus interest.

Our Comments

This case serves as a reminder that employers need to educate themselves and be aware of the issues surrounding menopause and that these could amount to a disability. Employers should be particularly mindful of how the symptoms can impact an employee’s performance and be prepared to make reasonable adjustments accordingly.

We have also previously covered a similar case whereby it was held for the first time that a Claimant’s menopausal symptoms amounted to a disability. The link to the overview of this case is here.