Menopause Related Employment Tribunal Claims – Implications for Employers
Posted on: November 7th 2022 · read
Menopause: Employment Tribunal claims - Implications for Employers
The increased rates of employment among women aged 50 and above mean that more working women than ever before will experience menopause transition during their working lives.
Latest analysis of court records has shown that the number of tribunal cases which cite menopause increased by 44% in 2021.
Employers owe statutory duties of care to ensure the safety and wellbeing of their workforce. They are also deemed to be vicariously liable for the discriminatory conduct of their employees and workers.
In this article, we explore a number of cases which illustrate the various claims that can arise as a result of employers not taking the necessary steps to understand the impact of menopausal symptoms on employees who are experiencing this difficult but inevitable time in their lives.
The case of Merchant v BT Plc (2012) (10 January 2012) was the first menopause related tribunal case which established that where an employee is subjected to less favourable treatment as a result of her menopausal symptoms, this can amount to sex discrimination.
The claimant was experiencing difficult menopausal symptoms, which were adversely affecting her performance at work. She had been subject to the capability and performance management process a number of times and was at the stage of a final written warning. The issues with her performance were continuing, and her employers were now deciding whether to offer her alternative employment or dismiss.
She provided her employers with a letter from her GP which said that she was going through the menopause and that this “can affect her level of concentration at times”; also that she was suffering stress due to being a carer for two members of her family.
BT’s performance management process required managers to investigate whether an employee’s underperformance may be related to health reasons, The Claimant’s line manager chose, however, not to consider the impact of her menopausal symptoms on her ability to perform in her role, neither did he seek further medical or expert opinion. He chose to rely on his own knowledge of the menopause, based on his wife’s experiences and symptoms. He disregarded the company’s performance management procedure, by failing to conduct occupational health investigations, despite it being clear that her health issues were a likely cause of the decline in her performance.
The Claimant was dismissed for poor performance without any further medical investigations. This was despite the fact that her manager had previously referred male employees to occupational health where their performance was potentially affected by health issues. Ms Merchant brought claims for unfair dismissal and direct sex discrimination.
The Tribunal upheld Ms Merchant’s claims and pointed out that the manager would never have adopted “this bizarre and irrational approach” with other non-female-related conditions. The failure to refer her for occupational health assessment following the letter from the GP, before taking the decision to dismiss, was considered to be direct sex discrimination. The Tribunal said that a man suffering from ill-health with comparable symptoms from a medical condition (in this case, affecting concentration) and with performance issues, would not have been treated in the same way. This was also directly against the employer’s own policy. In addition, the making of assumptions about the Claimant’s symptoms amounted to unlawful sex discrimination.
In Davies v Scottish Courts and Tribunals Service (2017), the claimant was a Court Officer suffering with perimenopausal symptoms, including memory loss, heavy bleeding, and also feeling “fuzzy”, emotional and lacking concentration at times. She was being treated for cystitis, the medication for which had to be diluted into water. She took it to work with her on 27th February 2017, with the intention of diluting it into the water jug on her desk and drinking it during the course of the day.
When the Claimant returned to the Court after an adjournment, she noticed the items on her desk had been moved and the water jug on her table had been emptied. She saw that 2 litigants were drinking from a jug of water, and she mistakenly thought they were drinking her water with her diluted medication and panicked. The claimant approached the men, asked where the water had come from, and was told the Clerk had given it to them. The men asked the claimant why it was of any concern, and the claimant informed them her medication may have been in the water. One of the men launched into a rant and made comments to the effect of ‘trying to poison the two old guys in the court’ and asking if he would grow “boobs”. The Claimant said she didn’t think the medication would cause any harm but wasn’t sure. She could not remember if she had put her medication in to the water or not. The Respondent carried out an investigation. It transpired that the water would have turned a pink colour if the medication had been dissolved in it. Her employer considered that she had lied and brought the court into disrepute. The Claimant was dismissed due to her forgetful and confused behaviour, which were symptoms of her peri-menopause.
She successfully claimed unfair dismissal and discrimination arising from disability.
The Tribunal ordered the Respondent to reinstate the Claimant and to pay the sum of £14,009.84 in respect arrears of pay, and £5,000 for injury to feelings.
In A v Bonmarche Ltd (2019), the Claimant had worked in retail for 37 years and was a high achiever. Her situation at work changed in around May 2017 when she began to go through the menopause. Her male manager would demean her and humiliate her in front of other staff who were younger than the Claimant and would laugh at the manager’s remarks. The manager also called her “a dinosaur” in front of customers and continually criticised her unreasonably. On one occasion he criticised her for failing to staple together two pieces of paper and related this to her having menopausal moments. The manager also refused to adjust the temperature in the shop to take account of the Claimant’s requirements and failed to make reasonable adjustments despite knowing of her condition. The Claimant took sick leave due to anxiety and depression and on return was told that she was ‘pushing her luck’ when she asked for a break to take medication.
She contacted higher management regarding her manager's treatment of her, but no action was taken. She suffered a breakdown in November 2018 and her manager was extremely cold and threatening towards her when she returned to work. The claimant felt that she had no other option but to resign.
The tribunal upheld her claims for constructive unfair dismissal, sex, and age discrimination. She was awarded £10,000.00 compensation for loss of wages and £18,000.00 for injury to feelings.
In Best v Embark on Raw Ltd (2020), the Claimant worked as a sales assistant for the Respondent’s pet food business. The Claimant was employed from 29 January 2019 until her dismissal on 11 May 2020.
During the beginning of the Covid 19 pandemic, the Claimant was acutely anxious and concerned that her employer was not complying with social distancing and health and safety at work Covid guidelines. She challenged her employer repeatedly about this but was told she was being “paranoid”. The Claimant was suffering menopausal symptoms at this time and had made it clear that it was a highly sensitive topic for her, and she did not want it to be spoken about. Despite this, when she continued complaining about the staff not complying with Covid 19 safety measures, the owner asked her if she was menopausal.. A customer had been describing a ‘hot flush’, the Claimant put her hands over her ears and said, ‘I am having none of that, I don’t even want to hear about it’. Even so, the owner continued to pursue the topic even after the customer had departed.
The Respondent dismissed the Claimant for being rude and confrontational towards her colleagues, and because of her constant arguing and complaining.
The Claimant brought claims of whistleblowing, sex and age discrimination, and automatically unfair dismissal.
The employment tribunal held that the Respondent owner had violated the Claimant’s dignity and created a humiliating environment for her at work when he tactlessly asked her whether she was menopausal after she had made it clear that she did not want to discuss the topic. The tribunal also found that the claimant had been treated less favourably as a result of her complaints about the menopause comments. The total of compensation awarded in this case was £20,057.74
Individuals who are going through the menopause may experience disability, sex, or age discrimination from colleagues or managers. If discrimination does occur while at work, the employer will be held responsible. Therefore, to avert the risks of unfair and discriminatory treatment, employers should review their policies and procedures, and update them if there is not already a menopause related policy in place, and / or consider adapting performance, disciplinary and absence policies to include measures such as making adjustments for employees whose menopausal symptoms may be impacting on their attendance, performance and conduct at work.
Best practice for employers includes training managerial staff to ensure they are familiar with the symptoms of menopause and are able to deal with issues appropriately and sensitively; considering adaptations that may need to be made to address specific needs of menopausal employees such as ventilation and access to suitable toilet facilities; and reviewing relevant policies such as sickness and performance management to consider whether adjustments are required to take account of the impact of the menopause.
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