REWARD
Reasonable adjustments, refusal to wear a mask and redundancy payments
Nicola Mullineux, senior employment specialist for Peninsula, explores the interesting outcomes of three different recent employment law cases
Lynskey v Direct Line Whether the menopause amounted to a disability and whether the respondent had made reasonable adjustments was considered in this case by the employment tribunal (ET). The claimant worked for the respondent from 2016 and was classed as a ‘high achiever’ in her sales role. However, when she experienced menopause symptoms which included ‘brain fog’, concentration difficulties (particularly in retaining information), being much less resilient to life’s ups and downs and being frequently tearful, her performance declined. The respondent was aware of how the menopause symptoms were affecting her. The respondent moved the claimant into a different position which involved talking to a specific customer group who often had technical questions. Following a review, the claimant was given a rating of ‘need for improvement’ (NFI). As the group-wide policy was that all employees who were rated as NFI were ineligible for pay awards, she lost out on a pay increase. The claimant struggled to access computer systems she had previously been able to use, she struggled for words and was cold and unfriendly at times to clients. There was one particular incident where it
was alleged that the claimant had spoken to a client in an unacceptable manner. The claimant’s manager categorised her underperformance as ‘confidence issues’. The claimant was taken through a disciplinary process and given a written warning because of her alleged underperformance. Then when the claimant went off sick, the respondent exercised its discretion and stopped her company sick pay. This was because the respondent believed her level of absence was unsustainable to the business. However, the claimant believed she had only used half of her entitlement to company sick pay at this point. The claimant ultimately resigned and brought claims for constructive unfair dismissal, sex discrimination and age discrimination, which failed. But her claims for failure to make reasonable adjustments and discrimination arising from a disability were successful. The ET found that her symptoms amounted to a disability and that a less
discriminatory approach could have been taken. This could have included an occupational health referral and consideration of other roles including non- telephony positions. Also, the call time and non-assurance targets could have been reduced for her. The ET found that moving the claimant from her sales role was made under false pretences and more support should have been given to her in her original role in the first instance. The ET also found that the disciplinary process shouldn’t have been progressed. The ET stated that the claimant could have expected some reflection on whether her performance could have been rated as ‘good’, as she was doing all that she could do to achieve within her limitations. They commented that a profound cause of the claimant’s upset was the respondent’s refusal to accept the claimant’s impairment as mitigation in the disciplinary hearing. This was a theme, the ET found, which continued as they criticised her for not doing enough to help her recovery.
“They commented that a profound cause of the claimant’s upset was the respondent’s refusal to accept the claimant’s impairment as mitigation in the disciplinary hearing”
| Professional in Payroll, Pensions and Reward | December 2023 - January 2024 | Issue 96 48
Made with FlippingBook - Online magazine maker