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Healthcare newsletter – Menopause and workplace discrimination

The Employment Appeal Tribunal (EAT) has recently considered a series of complaints relating to the menopause. Claims relating to the menopause often include allegations of discrimination on the grounds of age, sex and/or disability. In this case, a Tribunal upheld the disability discrimination claims.

In Lynskey v Direct Line, the Claimant (a sales consultant for an insurance company) started to suffer from low mood, anxiety, mood swings, as well as and poor concentration and some issues with her memory. At the same time, a company wide retraining scheme began. As her health worsened, Ms Lynskey discussed her situation with her line manager. She was offered a role in a different team which faced fewer pressures than her sales role. As her performance was affected, she missed out on a sales-related bonus, a pay rise, and was issued with a written warning. Shortly afterwards she was absent from work due to stress.

Ms Lynskey was referred to Occupational Health who advised that she was suffering from the effects of the menopause, was likely a disabled person for the purposes of the Equality Act 2010, and recommended a phased return to work. When her occupational sick pay was exhausted, Ms Lynskey raised a grievance and it was reinstated. However, the warning was not withdrawn and she remained absent due to stress. She then resigned.

In her Employment Tribunal claim, Ms Lynskey alleged that she had been discriminated against on the grounds of sex, age and disability, and that she had been constructively dismissed.

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What did the Tribunal decide?

The sex and age discrimination claims and the constructive dismissal claims were not upheld. However, the Tribunal found that she had been discriminated against on the grounds of disability and in particular that her employer had failed to make reasonable adjustments and had discriminated against her on the grounds of something arising as a consequence of her disability. The Tribunal thought that she should have been ‘given the benefit of the doubt’ in both the written warning and the assessment of her performance if the difficulties caused by the menopause had been taken into account. It was also discriminatory to cease her sick pay.

The Tribunal also held that failing to refer her to Occupational Health at an early stage, and requiring her to meet the same performance standards as her colleagues were discriminatory and in both cases reasonable adjustments should have been made. Ms Lynskey was awarded a total of almost £65,000 in compensation, including £23,000 as injury to feelings for the acts of discrimination.

Key takeaways for employers

Although it is only a decision by one Tribunal (and so not binding on other Tribunals necessarily), the case illustrates the dangers for an employer of failing to consider the impact a health condition can have on an employee, and taking that impact into consideration. The managers knew about Ms Lynskey’s health, and had the benefit of Occupational Health advice. Once it is clear that there is an impairment that affects an employee’s performance, it is essential that the employer considers what steps it can reasonably take to address these.

For advice relating to workplace discrimination, or any other Employment law matter, please do get in touch with James English or another of our expert Employment lawyers.