Employment tribunal and court judgments | September 2023

Lynskey v Direct Line Insurance Services Ltd

Menopausal employee's disability claim succeeds providing guidance on performance management processes for disabled employees

Background

The claimant had worked as a sales consultant for the respondent since April 2016.

The respondent introduced a new initiative through 2019 which involved re-training the entire sales force. This coincided with the onset of menopausal symptoms for the claimant. She experienced "brain fog" and concentration difficulties, and she was frequently tearful.

The claimant's performance declined in several areas. From March 2020, the respondent was aware that the claimant was being profoundly affected by menopausal symptoms and was seeking medical treatment for them.

In June 2020, the claimant was placed on a "success plan". Following an absence from work due to stress, the respondent offered the claimant the opportunity to transfer to an alternative role, which she accepted. The claimant initially performed well in the new role but then her performance again declined.

The respondent's end of year pay rises were associated with end of year reviews. The claimant had previously received "high performer" ratings and respective pay rises. However, her 2020 end of year review stated "need for improvement" which meant that she was not eligible for a pay rise.

In April 2021, the respondent commenced disciplinary procedures when the claimant's line manager did not feel she was making significant progress. The claimant informed the respondent that the problems with her performance were due to her menopausal symptoms however she received a first stage warning with a success plan.

In July 2021 the claimant was signed off sick and later referred to occupational health. Whilst the claimant was off sick, the respondent decided to stop paying her discretionary sick pay even though she had not reached the maximum absence threshold because it believed she wasn’t doing enough to return to work. There was no medical evidence to support this conclusion and advice from occupational health was that the Claimant was unfit to return to work. Occupational health had also advised that the claimant was likely to be disabled.

The claimant resigned in May 2023 and brought claims of constructive dismissal and discrimination on the grounds of her gender, age and disability.

Employment Tribunal decision

During the proceedings, the respondent accepted that the claimant's menopausal symptoms amounted to a disability.

The claimant's claims of failure to make reasonable adjustments and discrimination arising from disability succeeded relying on symptoms of menopause.

From March 2020 the respondent knew, or ought reasonably to have known, that the claimant had become a disabled person by reason of her menopausal symptoms. If there was any doubt, an occupational health referral ought reasonably to have been made.

The claimant was at a disadvantage in comparison with colleagues in meeting the respondent's performance standards and targets and more likely to be sanctioned or face disciplinary/performance warnings. The respondent failed to put in place reasonable adjustments to address this (albeit the transfer of the claimant's role in June 2020 did constitute one reasonable adjustment). Even though the respondent provided coaching and additional training, there were other reasonable adjustments it should have offered, including, reducing the claimant's targets and looking for a role that did not require her to deal with difficult customers (one of the issues being that complaints had been made about the claimant).

Whilst the respondent gave the claimant an honest and objective 2020 end of year assessment, the rating as "need for improvement" was unfavourable treatment if the person, through disability, could not improve or meet the required standards. The respondent's defence had failed to explain how the rating and pay decision in respect of the claimant achieved their aim of ensuring high quality and efficient services to customer and how the policy impacted disabled employees.

The disciplinary warning issued was also considered unfavourable treatment as the line manager (ignoring the respondent's own policy) had failed to consider the claimant's health condition as mitigation in circumstances when her symptoms were at the heart of the disciplinary charges.

The removal of sick pay was found to be without reasonable and proper cause in all the circumstances. The occupational health report had made clear that the claimant was unfit for work and would be for a few weeks and there was no evidence to support the respondent's position to support the fact that she was not doing enough to return to work.

The tribunal found that the performance rating, the disciplinary warning, and withdrawal of the discretionary sick pay were breaches of the implied duty of trust and confidence and therefore amounted to fundamental breaches. But her constructive dismissal claim failed as the claimant had waited eight months to resign and as such had affirmed her contract (accepted the breaches). Even though the claimant had been ill, she had participated in the internal processes and had advice from her trade union, therefore she could have resigned earlier.

The claimant was awarded circa £65,000 in compensation (including interest), £30,000 of which was for loss of earnings (the tribunal found that she had been treated so badly and therefore could not have returned to work any earlier).

She was also awarded an injury to feelings award of £23,000 due to the respondent's failure to accept that her declining performance was due to menopause, and the general view that the claimant wasn’t doing enough to help her own recovery.

The claimant was also awarded aggravated damages of £2,500 because the company did not accept that she was disabled until a couple of months before the hearing. The respondent knew about her condition at an early stage and the report from occupational health, obtained at an early stage had stated that the claimant's menopause symptoms were likely to amount to a disability.

In this case, the employer was aware of the difficulties that the claimant was suffering during the menopause. They began by putting in place support but appear to have lost patience and formed a view that the Claimant was not doing enough to help herself back to work and the working relationship began the breakdown. Advice should have been sought from occupational health at an earlier date, as well as the claimant's own GP to assist in the performance process.

Mallon v AECOM Limited

What is reasonable when adjusting your recruitment process for disabled applicants?

Background

The claimant had been previously employed by the respondent between April and December 2017.

In August 2018, the claimant attempted to apply for a role with the respondent which involved completion of an online application form. Due to his dyspraxia, he was unable to complete the online application form.

The claimant emailed the respondent's HR department stating: "Hello HR, I have seen this role in London that I would like to apply for and please find my CV attached for your role, please let me know the next phase. Thanks Christian"

On the first page of the claimant's CV, he included the following text in bold and in capitals under the heading "employment history":

"PLEASE NOTE THAT BECAUSE OF MY DISABILITY, I REQUEST REASONABLE ADJUSTMENTS TO BE MADE IN MY APPLICATION BY DOING AN ORAL APPLICATION THIS WOULD BE A 5 TO 10 MIN PHONECALL TO TALK ABOUT MY EXPERIENCE AND CAN THIS BE ARRANGED BY EMAIL PLEASE… AND I WILL SUPPLY A TELEPHONE NUMBER (more technical information about my medical condition is at the end of this CV)."

The claimant's CV only identified his disability as dyspraxia from the last section of the CV in which he included numerous bullet points over two pages of the general problems experienced by people with dyspraxia. There was no way of the respondent knowing from the claimant's CV alone which of the bullet points applied to the claimant and to what extent.

The respondent's HR department responded to the claimant's email advising that the claimant needed to submit an online application form. It went on to say, "if you have concerns about filling out an online application form, please let us know". The claimant responded, "happy to do your form over the phone" and added his phone number.

Various similar emails went back and forth between the claimant and the respondent. One of the claimant's emails stated "…I wish to make an oral application for your form so when can this be arranged. I wish a fair recruitment process under the equality act, and I have asked for reasonable adjustments please read my CV and my request, when can we do this oral application?"

The emails from the respondent continued to state, "if you require assistance in submitting the form, we can accommodate this – please advise which elements of the form you are finding difficult to complete to enable us to assist you".

The claimant was later informed that the role he wished to apply for was no longer available.

The claimant brought a disability discrimination claim on the basis that the respondent failed to make reasonable adjustments given the difficulties he experienced with an online application form.

Employment Appeal Tribunal decision

The respondent knew that the claimant had dyspraxia from his previous employment with the respondent and because it was referred to in his CV.

The claimant had made clear he had difficulty in completing the online application form.

Case law requires employers to make reasonable enquiries as to the extent of the difficulties that a disabled person may face, at least in circumstances where the general difficulty has been raised by the claimant. The respondent had failed to put arrangements in place whereby the claimant could complete his application orally and this amounted to a failure to make a reasonable adjustment.

Whilst the respondent had offered to provide the claimant with assistance in completing the online application form, this offer was conditional on the claimant identifying the specific problems he was experiencing, and the conversations were had over email when the claimant was highlighting that he had difficulty with written communication. This did not amount to taking the required reasonable adjustments.

The claimant was awarded £2,700 in compensation made up of £2,000 for injury to feelings, plus interest of £700.

This case highlights the importance of ensuring that reasonable adjustments are made to recruitment practices. There appeared to be an over reliance of emails, when perhaps the better thing to do would have been to arrange a time to speak with the claimant about his application.