A woman has recently won her claim for disability discrimination and menopause discrimination against her employer, Direct Line. After reading the judgment I wholeheartedly agree with the Judge. She was treated appallingly.
Ms Lynskey was a telesales consultant. She had worked at Direct Line for 7 years before she resigned. She was a good performer as reflected in her previous four performance reviews before the last one. However, from 2019 she started to experience menopausal symptoms. These included brain fog, concentration difficulties especially in retaining information and she was much less resilient to “life’s vicissitudes, being frequently tearful”. On 2 March 2020 she was diagnosed by her GP with hormonal imbalance, depression and low mood.
Initially Direct Line made a few adjustments. She was transferred to a new role, which her manager said would be less stressful. But her performance suffered – she found it hard to use the systems she was familiar with and had communication difficulties with clients and her managers. She was given a “requiring improvement” rating in her performance appraisal that resulted in no pay rise, as well as a formal written warning for her poor performance. The claimant went off on sick leave as a result. However, her employer ceased paying discretionary sick pay before her entitlement had ended. She brought a claim for being treated unfavourably because of something arising in consequence of her disability of menopause and alleged that Direct Line had failed to comply with its duty to make reasonable adjustments.
She won. At tribunal the employer could not substantiate any of their actions. They could not provide a reasonable explanation for sanctioning Ms Lynskey nor had they considered taking other less discriminatory steps that would have achieved the same aims. The tribunal found that Direct Line should have considered an earlier referral to occupational health, worked with Ms Lynskey to find alternative roles and should have accepted her disability as a mitigating factor.
Instead, it penalised her, which the tribunal held was a repudiatory breach of her contract of employment. However, because she waited over eight months from when the breaches occurred to resign, the tribunal held that she had accepted the breaches. She therefore lost her claim for constructive unfair dismissal. (Employees should act swiftly in resigning after a breach, otherwise a claim for constructive unfair dismissal will be difficult).
Employment Judge Wade awarded her damages which included £23,000 for injury to feelings and £2,500 for aggravated damages because the employer refused to concede that she was disabled until the close of the final hearing. Aggravated damages are not awarded often so the employer’s behaviour was held to be particularly egregious.
You can read the full article here.
The menopause is not automatically a protected characteristic. You may be entitled to the protections of the disability provisions of the Equality Act 2010 if your menopausal symptoms have a substantial adverse effect on your ability to carry out normal daily activities.
This blog was written by Anita Vadgama, partner and solicitor at didlaw.
