Following the recent media backlash to the deputy governor of the Bank of England’s reference to the UK economy as “menopausal”, it is surprising that the menopause still remains a taboo subject in the workplace. Affecting over half the population at one time or another, it remains unsaid that all employers will experience the repercussions of the menopause at some point, whether they are actively aware of it or not.
The recent Scottish Employment Tribunal case, Davis v Scottish Courts and Tribunals Services, furthermore provides some welcome clarification on when menopausal symptoms can constitute a disability and also proffers a cautionary tale against failing to consider all factors behind misconduct.
Facts:
D was employed by the Scottish Courts and Tribunals Service (STCS) for 20 years before being dismissed for purported gross misconduct following an altercation at work. Despite having always been a model employee, D had been suffering from extreme side effects of the menopause for a few years and often felt “fuzzy”, emotional and lacked in concentration at times. D also became severely anaemic due to regular heavy bleeding and requested to be stationed in a courtroom near the toilet to enable her to frequently change sanitary towels, which she kept in a large pencil case alongside her prescription medicine.
On the day in question, D returned from a brief adjournment to discover that the jug of water next to her pencil case had been emptied and became flustered upon noticing that her pencil case was also open. Concerned that she may have already dissolved her medication into the jug, D approached two men drinking water in the public gallery.
She told them that they may have ingested her medication by mistake and a heated exchange erupted. The incident was later reported to the Health and Safety team and after several medical examinations, an official report concluded that even though the water was not actually contaminated, D’s actions warranted a disciplinary investigation as she had failed to uphold SCTS’s “values and behaviours” by knowingly misleading the men on the basis that she knew that the water would turn pink following dissolution. An Occupational Health Report was then conducted. D was dismissed following a disciplinary investigation. D brought claims for unfair dismissal and discrimination on the grounds of disability.
Decision:
The Tribunal found in favour of D, holding that had the SCTS properly analysed D’s Occupational Health Report they would have realised that the Claimant was experiencing substantial menopausal symptoms at the time of the incident (including both amnesia and fatigue) and therefore on the balance of the evidence available “her over-reaction was part and parcel of the anxiety caused by her condition”. D was reinstated into her old job and was awarded £14,009.84 for her losses up to that point and a further £5,000 for injury to feelings.
Comment:
Employers should still take heed of the Tribunal’s fact-intensive approach here, especially in light of the potentially unlimited damages available for successful discrimination claims. A more nuanced approach must be taken when investigating seemingly unacceptable conduct of women within the relevant age bracket. Employers should strive to make reasonable adjustments where possible, provide training to all employees and promote an open working dialogue with those affected in order to alleviate the stigma behind the menopause once and for all.