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An employment tribunal has held that an employer treated an employee unfavourably because of something arising from her disability and failed to make reasonable adjustments in Lynskey v Direct Line Insurance Services.  

The discrimination arising from disability arose from a low appraisal rating, a written warning and the removal of sick pay.

Mrs Lynskey worked for Direct Line Insurance Services Ltd as a tele-sales consultant from 2016 until her resignation in May 2022. She received good performance ratings for the first four years of her employment, but in 2019 she started to suffer from menopause symptoms which adversely affected her work performance. The onset of her symptoms coincided with the introduction of a new initiative which involved retaining all sales consultants, including Mrs Lynskey.

In March 2020 Mrs Lynskey's GP diagnosed a hormone imbalance, depression and low mood and prescribed antidepressants. Mrs Lynskey documented the effects of her menopause symptoms and the treatment she was receiving in her development notes prepared for her one-to-one meetings with her manager.  Concerns were raised with her performance and she accepted a role in the telematics team which was seen as a "better fit" as it did not have the challenges of a sales role. She did well in the role and gradually came off her antidepressants, but in November 2020 there were a couple of customer complaints regarding her handling of a call, and so she was given further training and coaching.

A performance management process began and Mrs Lynskey received a disciplinary warning. During the course of the process she was signed off work sick with stress. She was then referred to Occupational Health who advised that she was likely to be disabled. After 13 weeks of sick pay (the employer could use its discretion to pay up to 26 weeks sick pay in a rolling 12-month period) she was told that she would not receive any further payments. She brought a grievance alleging discrimination in connection with the disciplinary warning, the sick pay decision and other matters. Although she was awarded 13 weeks' sick pay on 30 March 2022 the warning was not withdrawn as the appeal chair reasoned that it would have expired by the time she returned to work. On 3 May 2022 she resigned bringing claims for constructive dismissal and disability, age and sex discrimination.

The tribunal upheld many of Mrs Lynskey's claims for discrimination arising from disability and failure to make reasonable adjustments. It found, amongst other things, that a less discriminatory approach could have been taken instead of imposing the written warning, namely a referral to Occupational Health, consideration of other roles, and accepting Mrs Lynskey's disability as mitigation. The decision to cease paying sick pay was also found to be discrimination arising from disability. From the evidence the decision was partly motivated by her manager's erroneous opinion that she could have been doing more to return to work and that removing her pay would encourage her to return.

The tribunal held that Direct Line ought reasonably to have known of Mrs Lynskey's disability in March 2020 when she first advised her manager of her menopausal symptoms and treatment after the visit to her GP. It would have been reasonable for her to have been referred to Occupational Health at that stage. It also held that, from April 2021, Direct Line's PCP of requiring her to meet the performance standards of the telematics role put her at a substantial disadvantage compared with persons who were not disabled.

The tribunal awarded Mrs Lynskey compensation totalling £64,645, including £23,000 for injury to feelings. It awarded £2,500 aggravated damages in relation to Direct Line's failure to concede that she was disabled until January 2023, and that it had constructive knowledge of her disability until the final hearing commenced in April 2023.

Take note: The decision in Lynskey shows the importance of employer awareness when it comes to menopausal symptoms and their potential impact on the sufferer's work. The tribunal was clear that Mrs Lynskey should have been referred to occupational health as soon as there was an awareness of her symptoms. Aggravated damages are rarely awarded and this shows the importance of identifying whether there is a disability as soon as the employee develops symptoms which suggest there might be or, as in this case, actually draws the employer's attention to the treatment they are receiving.