A recent case saw an employee successfully claim £5,000 for injury to feelings in connection with disability discrimination in the Glasgow employment tribunal, linking the menopause to disability in a rare example of this issue coming before the courts.
The particular employee concerned had various medical problems, related to the onset of the menopause, and was receiving medical treatment for a number of years when she was prescribed a granulated medication that is taken by dissolving it in water for a bout of cystitis. She kept the medication in a pencil case on her desk. She worked as a court officer and when she returned to her desk following a court adjournment, she found that her personal items had been moved and the water jug on her table had been emptied. There were two men in the public area drinking water, so she became concerned as to whether or not they were drinking the water from her desk, as she couldn’t remember if she had already diluted her medication into it. Thus, she approached the men asking them where they got the water from and she was told the clerk had given it to them. When they asked why she wanted to know she explained her dilemma. She wouldn’t say which medication. One of the individuals involved reacted badly. The incident was investigated by the health and safety team and the employee had to give a written statement. Later on, it was established that if she had put the medication in the water it would have turned pink. The report was quite damming of the employee, saying that she shown no remorse for her actions and didn’t appear worried that anyone had taken the medication, arguing that the employee hadn’t upheld the employer’s values and recommending dismissal for gross misconduct.
Despite the employee acknowledging that she’d made a mistake about the medication being in the water and providing an amended statement, the employer proceeded to a disciplinary hearing. They ignored the fact that the employee was flustered and agitated with her concern about what had happened. They ignored that she experienced anxiety attacks and that she had anaemia causing tiredness, light headedness and fainting. The employer was found to have discriminated against the employee by dismissing because it had failed to consider her disability’s impact on her conduct.
This is the first time that the law has really recognised that someone going through the menopause may be disabled, provided that the symptoms that she suffered from has a substantial effect on her ability to carry out normal day-to-day activities, which seems to have been accepted in this case.
It also illustrates the dangers of a s15 of the Equality Act 2010 claim – when you dismiss for the conduct can you be sure that there isn’t a disability that has caused that conduct?
One of the best things an employer can do in relation to this issue is educate people about what the menopause actually involves. An organisation called Menopause Café www.menopausecafe.net was set-up to do just that. You could include this if you are having a wellbeing week or a rolling programme of focusing on various different medical conditions?
Some employers are also drafting policies specifically targeting treatment of employees at this stage in their life. We do have such a policy available if you want it but I’m reluctant to suggest that employers must have such a document, on the basis that you could get into drafting separate policies for many many different aspects of managing workplace health, wellbeing and disability. Where do you end?