Can menopausal symptoms amount to a disability?
In order for a worker to be considered disabled under the Equality Act, the worker must suffer from a long term (i.e. 12 months or more) physical or mental impairment. This must have a substantial (i.e. more than trivial) effect on their ability to carry out day-to-day activities.
When a woman is going through the menopause, she may experience hot flushes, have urinary problems, find it hard to sleep and, suffer from low mood or anxiety. They may also have problems with concentration and memory.
While most women experience minor effects, there may be some women who suffer more extreme symptoms. But could they actually constitute a disability? This was considered in the Employment Tribunal (ET) case of Davies v Scottish Courts and Tribunal Service.
What are the facts of the case?
In this case, Ms Davies was an employee with 20 years service and an unblemished record. She was going through the menopause and suffered from heavy and regular bleeding and sometimes lacked concentration.
She notified her line managers of her condition and they made some adjustments. This included that she would no longer do jury court. In addition, on weeks when she was bleeding heavily, she would work closer to the toilet. She was also prescribed medication that needed to be diluted with water, which turned pink once dissolved.
In the incident that led her being dismissed, she escorted the Sheriff out of the court. When she returned, she found that her bag has been moved and her jug had been emptied. She saw two men drinking water and asked them where they had got the water from and was told they had been given it by the clerk.
When she explained her concern that they may be drinking her medication, one of the men raised his voice at her.
Health and Safety
The incident was reported to the Health and Safety team. It was found that the medication had not been in the water, but the Health and Safety Officer wrote an investigation report stating that she had behaved inappropriately, violated the Health and Safety Act and should face disciplinary action.
She was subject to a disciplinary process. An occupational health report found Ms Davies was suffering from peri-menopausal symptoms. The symptoms involved stress, anxiety, memory loss, tiredness and lightheadedness. But she was fit to work with adjustments.
Despite this report, the employer concluded that she had been aware that her medication was not in the jug and had knowingly misled the two men in the court and management. They considered that her actions amounted to a serious breach of trust and she was dismissed for gross misconduct.
What did the Employment Tribunal decide?
The Employment Tribunal found that the employer did not have reasonable grounds to find that Ms Davies had lied about her medication in the jug of water. The employer had discriminated against Ms Davies for a reason arising in consequence of her disability. They said ‘it was not proportionate to dismiss the claimant and fail to have regard to the impact of her disability on her conduct on the day in question’.
On this basis, The Tribunal decided Ms Davies had been unfairly dismissed and she should be reinstated. They ordered the employer to pay over £14,000 for lost pay for the period between the date of termination of employment and the date of reinstatement and £5,000 in respect of injury to feelings.
This case highlights the importance of not disregarding the effect the employee’s condition can have on their ability to carry out their work. If you are similar circumstances, it’s important to seek expert legal advice at the earliest opportunity.