LYNSKEY LOGIC
The Leeds Employment Tribunal has issued its judgment in the case of Lynskey v Direct Line Insurance Services this month. Whilst this is a first instance decision only and so not binding on other tribunals, we are a little concerned about the potential implications for employers if other first instance tribunals apply the Lynskey logic.
Case facts
If you want the full facts, take a look at the tribunal’s judgment (there’s a link to it at the end of this article). However, in summary:
L joined DL in 2016 as a telesales consultant. She initially received good performance reviews. However, in 2019 she began to suffer with symptoms of the menopause (including low mood, anxiety, mood swings, poor self-esteem, effects on memory and poor concentration) and her performance deteriorated. She openly discussed her symptoms with her line manager.
In June 2020 L’s manager questioned her conduct on a call with a customer, resulting in a “success plan” being implemented, which involved weekly coaching. Ultimately, L was offered (and accepted) a role in the telematics team as it did not involve direct sales and was considered to be a better fit for her. L initially did well in the new team and gradually came off her anti-depressants.
In November 2020, there were two further complaints from customers that L had been rude and abrupt on calls. L was given further coaching and agreed that it had perhaps been too soon to come off her anti-depressants.
In 2020 she received a “needs improvement” rating and was placed on a success plan. Her manager recorded that she was struggling to get to grips with the new role and needed a lot of support.
There were some further issues with calls in February/March and L’s manager sought guidance from HR on how best to manage L’s performance. The manager did not mention L’s menopause, instead stating that there were no underlying issues and the L just didn’t seem to be able to absorb what was required of her.
As a result, L was issued with a first written warning and placed on a further “success plan” for three months. In the associated paperwork, the manager acknowledged that L had referred to her menopausal symptoms but that these could not be accepted as mitigation because L had chosen to come off her anti-depressants, had not consulted her GP for some time and had been able to take on the new role in telematics.
L’s mental health deteriorated following receipt of this warning and, by July 2021, she was signed off work by her GP.
In August 2021, L was referred to occupational health who advised that she was likely to be disabled but should be fit to return to work in 6-8 weeks on a phased basis. OH recommended, amongst other things, adjusting L’s targets until her menopause symptoms improved.
In September 2021, L (who had by then received 13 weeks’ discretionary sick pay) was told that she would not receive any further discretionary sick pay, despite the fact that DL’s policy allowed up to 26 weeks’ DSP. L was also told that her further absence could no longer be sustained. This caused her further stress.
In November 2021, L raised a grievance. Her grievance was upheld in part and she was awarded a further 13 weeks’ DSP. However, her request for her first written warning to be removed was not upheld.
L then resigned and claimed constructive dismissal and unlawful discrimination (sex, age and disability).
DL made no admissions as to disability in its ET3, but later in January 2023 conceded disability (and in April 2023, just before the hearing, conceded knowledge of disability).
"In the light of this decision, it may well be that the best advice for employers who have an employee who is underperforming because of their disability would be, not to start a performance management process, but to focus on reasonable adjustments (and to document every such adjustment carefully and consult exhaustively with the employee and OH at every step)."
Decision
Amongst other things, the ET found that, in relation to the 2020 ‘needs improvement’ rating, L had been unlawfully discriminated against because of something arising as a consequence of her disability. The ET noted that the reason for the rating was the manager’s assessment that L struggled to retain information and held that this was something which arose because of her menopause symptoms. The ET reached a similar finding in relation to the April 2021 first written warning. In both cases, DL’s justification argument failed.
The ET also found that DL breached its duty to make reasonable adjustments by not sending L to OH sooner and by not adjusting the ‘usual’ performance standards required of the telematics role.
They found that DL had breached trust and confidence but that L had waived the breach and so that claim failed.
Comment
We said at the beginning of this article that we found this decision concerning. It is not concerning, nor is it any surprise, that L was found to be disabled. What is concerning, however, is that DL were awarded to pay aggravated damages of £2,500 for not conceding disability when they lodged the ET3. This puts Respondents in a very difficult position, because it is often necessary to see some supporting medical evidence and an impact statement before a judgment call can be made on whether to accept disability. It is wholly unsatisfactory that employers may be forced into making concessions without the benefit of supporting evidence. However, perhaps it is safe to assume that the tribunal was unimpressed by the fact that DL appeared to disregard the assessment of their own OH adviser in this regard and so was ignoring the blindingly obvious. Where you genuinely can’t say for sure whether the employee is disabled, we remain of the view that it would be appropriate not to concede disability, but each case will need to be judged on its own facts.
It is also concerning that the ET seemed to be completely opposed to the notion that an employer can performance manage a disabled employee. DL took many steps to support L, but it is clear that the ET thought that more should have been done. In particular, the ET felt that a formal performance management procedure should not have been followed at all because it will be inherently unfavourable if the employee cannot meet the required standards because of their disability. The ET also suggested that grading a disabled employee as “needs improvement” would be likely to seriously damage trust and confidence (i.e. give rise to a constructive dismissal) because the employee would be being asked to achieve standards which were impossible for them because of their disability. Ultimately, the ET would have preferred to see DL adjust L’s performance targets, transfer her to another role and/or abandon performance management altogether.
In the light of this decision, it may well be that the best advice for employers who have an employee who is underperforming because of their disability would be, not to start a performance management process, but to focus on reasonable adjustments (and to document every such adjustment carefully and consult exhaustively with the employee and OH at every step). If all else fails, the final adjustment would have to be considering transferring the employee to another role, failing which a capability dismissal would be the only remaining option. However, we can envisage a scenario where a tribunal will be critical of an employer who does not implement a formal performance improvement plan before proceeding to dismissal. Accordingly, any such capability dismissal would have to be messaged very carefully indeed and evidence to justify this decision (as being a proportionate means of achieving a legitimate aim) would need to be obtained.