Tue 07 Aug 2018

What can the menopause tell us about disability discrimination?

An employment tribunal in Glasgow has recently found that an employee going through the menopause had been both unfairly dismissed and discriminated against for a reason arising in consequence of her disability.

The important point for employers that arises from Ms M Davies v Scottish Courts and Tribunals Service is not, however, that being menopausal renders women disabled - in fact the Tribunal made no finding on disability status at all as it had already been conceded by the respondent in the case prior to the tribunal hearing taking place.  The message from this case is that employers must properly consider the effect that the symptoms of a condition have on an employee before taking the decision to dismiss (or indeed applying any disciplinary sanction).

Ms Davies had worked for the Scottish Courts and Tribunal Service ("SCTS") for nearly 20 years at the time of her dismissal and had an unblemished disciplinary record.  She suffered severe menopausal symptoms of which she had made her employer aware and they had made a number of adjustments to her duties to take account of this.  The tribunal heard evidence that the impact of the claimant's condition included anxiety, short term memory loss and confusion, as well as weakness and dizziness caused by anaemia. 

In February 2017, Ms Davies required medication for cystitis which was granular and required to be dissolved in water.  While working in Court she intended to dilute a jug of water which was on her desk with her medication with the intention of consuming it through out the day.  However, after an adjournment she realised the jug had been emptied.  She then noticed two men in the public area of the Court drinking water.  Although she couldn't remember if she had put the medication in the jug or not she checked with the men where the water had come from and was told the Clerk had given it to them.  She immediately informed the men that her medication may be contained in it but would not disclose what the medication was.  One of the two men became very upset by this. 

The SCTS health and safety team were notified that day and they took medical advice on the risks of the men having consumed it.  Ms Davies was also required to provide a written report of what had happened and attended a Health and Safety meeting with a Mr McClintock and a Mr Miller.  Prior to this meeting it was confirmed that the medication had not been in the water as it would have been visible, turning it pink and giving it a cranberry taste.  A H&S report was subsequently produced which concluded there were no immediate health and safety issues.  However, it also included observations about the Claimant, including one that there could be no doubt that she would have known that there was no medication in the water as the water was clear and had no taste.  It went on to suggest the incident amounted to gross misconduct by Ms Davies. 

A disciplinary procedure was followed and Ms Davies was dismissed, with an appeal against that dismissal being unsuccessful.  During the disciplinary procedure it was concluded that she had "knowingly misled" the men about the medication being in the water.  This was despite an occupational health report confirming that the menopausal symptoms caused loss of memory, tiredness and light headedness. 

The employment tribunal concluded that Ms Davies had been both unfairly dismissed and discriminated against.  They found the H&S report to be flawed, and that throughout the disciplinary procedure SCTS did not take proper account of Ms Davies explanation or the medical information.  They were also satisfied that the conduct which led to the dismissal was caused by her symptoms of her disability.  The failure of SCTS to take into account the impact Ms Davies disability had on her conduct meant the dismissal could not be a proportionate means of achieving the stated legitimate aim of having an honest and trustworthy staff, and accordingly, the discriminatory act of dismissal could not be justified. 

This case is a timely reminder that an every day condition such as menopause can, in certain circumstances, render an employee disabled.  It also highlights how important it is for employers to fully consider how symptoms might impact on the behaviour and conduct of an employee in the workplace. 

This judgement was coincidentally issued at the same time as a report by Public Health England that found that  31% of women experience severe reproductive health problems such as those associated with the menopause during their working life.  The Minster for Women and Equalities, Victoria Atkins, has also emphasised the importance of employers in supporting women in the workplace during a recent House of Commons debate.  The need to have adaptable policies for women going through the menopause was highlighted.

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