The Claimant in this case worked as a tele-sales consultant with the Respondent, Direct Line, from 2016. She performed this role at a high level. In 2019 she began experiencing issues with her concentration and overall job performance. These symptoms stemmed from the Claimant going through menopause. She obtained medical advice and was also prescribed anti-depressants. The Respondent was aware of this and provided support including coaching.
In June 2020 the Claimant spoke to a customer in a way that she agreed was not acceptable. After her line manager discussed this incident with her she was signed off due to stress. The Claimant was offered a different role that did not require her to sell to customers directly and it was hoped the Claimant would find this role to be less stressful.
The Claimant accepted the new role and began in July 2020. The Claimant was happy in her new role and was initially performing well. Additionally, the Claimant informed the Respondent that she was no longer being prescribed anti-depressants.
In November the Claimant was the subject of two customer complaints. These specifically related to the Claimant’s manner over the phone. She again accepted this behaviour was unacceptable but struggled when having “challenging conversations”. No disciplinary action was taken and the Claimant received further training and coaching. Her appraisal rating was “need for improvement” and she did not receive a bonus. The Claimant was given refresher training and coaching.
In April 2021 the Claimant was informed that disciplinary action would be taken against her. The Claimant explained that her symptoms associated with the menopause were the reason for her poor performance. She received a first written warning and a performance improvement plan. The Claimant was again signed off with stress in July.
Occupational Health was contacted in August and the report suggested the Claimant be offered a phased return. Other recommendations included training and the removal of targets until her symptoms alleviated. The report stated that it was likely that the Claimant would fall under the legal definition of disabled. During this time the Respondent made the decision to cease paying company sick pay despite the Claimant only having used half of her entitlement. They did so as they were unconvinced the Claimant was taking steps to be able to return to work. Ultimately this was paid to the Claimant as a result of a grievance she raised.
The Claimant resigned in May 2023 whilst she was still signed off with stress. She raised a tribunal claim alleging constructive dismissal as well as disability, age and sex discrimination and harassment.
The Claimant was successful in her claims for discrimination arising from disability and failure to make reasonable adjustments. The Claimant was very open and provided a lot of information regarding her medical issues and the tribunal concluded that the Respondent had been constructively aware of her disability since March 2020. The fact that the Respondent did not acknowledge that the Claimant was disabled until one month before the hearing led to the Claimant receiving aggravated damages.
The tribunal held that her performance rating should have been “good” as the Claimant was doing her best despite her medical issues and this would have resulted in a pay rise. The disciplinary warning the Claimant received was also held to be unfavourable treatment as the company policy set out that managers must consider whether there are any underlying issues that would need looked into before proceeding. Another example of unfavourable treatment was the withholding of company sick pay.
In terms of reasonable adjustments the tribunal pointed out that there were ways the Claimant could have been supported to perform better in the role she had as the role she was moved to was done under “false pretences” and involved a financial penalty for the Claimant. Targets could have been removed or reduced, and the disciplinary process could have been dropped.
For employers this case shows the importance of taking an employee’s medical concerns seriously. In this case the employee was very frank about the issues and while these were acknowledged they were not treated as a disability and therefore the support only went so far. The duty to make reasonable adjustments is one that needs to be considered carefully.
If you have any questions on any of the issues raised in the above article, please contact Natalia Milne.