A recent case has highlighted the fact that employees transitioning through the menopause may be regarded as disabled and protected from unlawful discrimination in the workplace.
In Davies v Scottish Courts and Tribunal Service (SCTS), Ms Davies had a 20 year unblemished employment record. As a result of going through the menopause, she became severely anaemic, felt ‘fuzzy’, emotional and lacked concentration. She informed her line managers in 2016 of her condition and adjustments were put in place to allow her to carry on with her role.
In February 2017, the Claimant took medication to work which needed to be diluted in water and drunk during her working day. She left the medication on her desk when escorting someone from the court and, upon her return, became concerned that her water jug had been emptied. She couldn’t remember whether the water in the jug contained her medication. She approached two men in the court room who were drinking water and asked where they had got it from. In the course of the discussion, one of the men became very irate.
The Court Service started a health and safety investigation, during which Ms Davies stated that she had put the medication into the jug. The contradicted evidence which had already been gathered that the medication would have changed the taste and colour of the water. The health and safety investigation concluded that there were no outstanding health and safety issues. However, the author of the report went on to give his opinion about Ms Davies and the incident, saying: ‘there can be no doubt that Ms Davies would have known that there was no medication in the water as the water in the jug was clear and had not taste. In addition, she showed no remorse for her actions and didn’t appear worried that others had taken this medication’. It went on to say that Ms Davies had not demonstrated the values and behaviours of the Court Service and that the incident amounted to gross misconduct.
The Claimant was dismissed following a disciplinary hearing on the basis that she had ‘knowingly misled’ the men about her medication being in the water and had bought the court into disrepute. Her appeal was rejected. During the disciplinary process, an occupational health report found that Ms Davies condition led to amnesia, tiredness and light-headedness as well as heavy bleeding.
At an Employment Tribunal, the Court Service accepted that Ms Davies’ heavy menopausal symptoms meant that she was disabled. The Tribunal went on to find that the dismissal procedure had been flawed for placing too much reliance on the health and safety investigation. The Tribunal found that there were no reasonable grounds to find that Ms Davies had lied because they didn’t take account of her explanation about being confused and stressed and they ignored the medical report which had cited possible memory loss and confusion.
The Tribunal ordered that Ms Davies was reinstated. The Court Service was required to pay back pay and £5,000 in compensation for injury to feelings.
Our view: As with many conditions, whether an employee is ‘disabled’ will depend upon the circumstances of the case. Not every menopausal employee will be entitled to be protected as a disabled person. Employers should look at whether an employee’s medical history could class them as disabled as well as the effect that an employee’s symptoms have on them. Employers should also be aware of potential claims for direct or indirect sex discrimination and victimisation from employees who are subjected to detrimental treatment as a result of going through the menopause.