The recently published judgment in Lynskey v Direct Line Insurance Services Ltd [2022] highlights the risks involved in putting a disabled employee through a performance management process, and the extent of reasonable adjustments required for an employee affected by menopause symptoms.
The Claimant (‘L’) performed well for the first four years of her employment, before menopause symptoms adversely affected her performance. As a result, L failed to receive a pay rise due to her performance being rated ‘need for improvement’ and she received a written warning following a disciplinary process arising from her performance. Later, L’s discretionary sick pay was withdrawn on the basis Direct Line could not sustain further absence, a decision which was internally overturned following a grievance process.
Direct Line had been aware of L’s disability throughout the relevant period and had taken many steps to support L. It moved L to a less-challenging role (with her consent), provided repeated additional training, daily management sessions, counselling, and menopause advice sessions, and referred L to occupational health. Despite these steps, the ET determined that more should have been done. It stated Direct Line should have considered L’s disability as mitigation during the performance management process, and either considered other suitable roles or an occupational health referral earlier instead of a written warning.
This demonstrates the essential need to consider the impact of disability on performance, as well as the inherent discrimination risks that arise from any form of ‘discretionary’ policy. It also emphasises the need for occupational health involvement as early as possible in such situations.
