Despite her symptoms meeting the legal definition of disability, the Employment Tribunal in McMahon v Rothwell and Evans LLP ruled that a dismissed worker experiencing menopause at work had not been subjected to disability or sex discrimination by her employer.
The claimant was a typist and conveyancing apprentice working for the respondent, a small to medium sized law firm. In 2019, the claimant changed roles and line manager, working under the senior conveyancing assistant. During September 2018, the claimant sent an email to the senior partner of the respondent in order to explain an absence from work in which she stated that she had been “diagnosed as menopausal” and that she had “all the symptoms and they have become quite unbearable, and I can feel so hot like I have flu.” The Senior Partner responded: “a little bit too information but it does help us to be made aware of these problems”.
Over the following months, the respondent continued to have attendance and reliability concerns regarding the claimant due to a number of absences, including on one occasion in January 2019, when the claimant only informed the respondent at 11.00am that she would not be attending work that day due to flu like symptoms. The claimant’s request for a short notice day off from work in May 2019 eventually prompted the respondent to dismiss her on 10 May citing “issues with regard to your timekeeping, extended breaks, and in connection with your continued absence.”
In assessing whether the claimant had suffered discrimination, the tribunal set about deciding the true reasons behind the respondent’s decision to dismiss her. They found that due to the change in the claimant’s role in 2019, reliability and attendance had become much more important for the respondent. In her 2018 role, the claimant had a more flexible working relationship with her manager, including the claimant being able to make up for hours she had missed through absence at a later time. Due to the nature of her 2019 role and as her new manager only worked part of the week, it was necessary for the claimant to be able to cover the work in real time – not make up hours at another time as before. The tribunal found that the frequency of absences and the failure of the claimant to keep the respondent adequately informed were additional reasons for dismissal.
In relation to disability, the tribunal found that the cumulative effects of the claimant’s menopause at work symptoms had met the legal definition of disability. However, when deciding whether the respondent had knowledge of the claimant’s disability, the tribunal found in the negative. It was suggested that the respondent had ‘constructive knowledge’ of the disability i.e. that they had turned a blind eye to symptoms, however this was rejected. The email in September 2018 was deemed by the tribunal as an explanation by the claimant as to why she had been late to work on occasion but for the menopause at work to be seen as a disability the respondent would have needed more information.
This is a case therefore that serves as a reminder that the existence of a disability and a dismissal will not, in and of themselves, amount to a successful tribunal claim. All elements of the specific legal claim must be met: in relation to discrimination claims linked to disability, this includes knowledge on the part of the employer of the existence of a disability in the first place.
That said, it is an example of menopause at work being held to be a disability, and a reminder that disability should in the vast majority of cases be examined by reference to the definition at s6 of the Equality Act as explained by our Karen Jackson here.
This blog was written by Michael Green, Trainee Solicitor at didlaw.
