A very interesting case has very recently been dealt with by Employment Tribunal Judge Wade (Lynskey –v- Direct Line Insurance Services Limited) on the 4th August 2023.

The case concerned an employee that was suffering menopause symptoms that were negatively impacting on her work performance. The Employment Tribunal held that the employer had treated this employee unfavourably because of something arising in consequence of her disability of menopause and had failed to make reasonable adjustments. The menopause and symptoms arising from it are not automatically considered to be a “disability” under the Equality Act 2010. A statutory test has to be satisfied in order to demonstrate that someone is suffering with a “disability”.

In this particular case the employer was aware of the employee’s menopause symptoms and the fact that prior to the onset of those symptoms she had four years good performance at work. The employer did in fact make some adjustments and provided additional support and training but the Tribunal considered that it should have done more!

The Tribunal found that performance procedure should have been abandoned, the employees targets lowered and a move to a different role considered. In the case the employer had given the employee an annual performance rating of requiring improvement (which resulted in not receiving a pay rise), a formal written warning and had ceased to pay discretionary sick pay before the employee’s entitlement ended. These were all found to be types of discrimination arising from a disability. The Tribunal Judge stated that a less discriminatory approach could and should have been carried and a referral to occupational health should have been made.

The employee was unsuccessful with a constructive unfair dismissal claim because whilst the Employment Tribunal considered that the employer had acted in serious breach of the Employment Contract when giving the employee the appraisal rating, written warning withdrawing the sick pay, the Tribunal considered that because the employee had remained with the employer for over 8 months before resigning that the employee had affirmed the contract.

The employee received an award of over £64,000.00 for the unlawful discrimination including £23,000.00 for injury to feelings. £2,500.00 was awarded for aggravated damages relating to the employer’s refusal to concede that the employee had a disability.

Our Employment Law Specialist, Jennifer Carpenter Solicitor and Managing Partner can provide advice to employers as to their duties and responsibilities in relation to any type of disability and the Equality Act 2010. Also, advice can be given to employees that consider they may have been treated less favourably as a result of a disability either directly or indirectly. If you think you need help please contact us at [email protected]