A Scottish tribunal case has highlighted that women who have the symptoms of the menopause may be protected by discrimination legislation.

The facts

Mrs Davies was employed as a Court Officer by the Scottish Courts and Tribunal service (SCTS). For two or three years, she experienced severe menopausal symptoms, such as heavy bleeding which left her severely anaemic, feeling “fuzzy”, and sometimes unable to concentrate.

Mrs Davies was prescribed medicine for cystitis. The medicine is in granular form, and taken diluted in water. Mrs Davies took the medicine with her to work, with the aim of diluting it and drinking it during the day. During an adjournment, she left the court room, and returned to find that her pencil case (in which she kept her medication) and the water jug on her table had been moved. She also noticed two men in the public area of the court drinking water, and was worried that they might be drinking the water from her desk, because she could not remember if she had diluted her medication into the water. The men said that the clerk had given them the water, and Mrs Davies explained that her medication may have been in the water, though she refused to tell them what the medication was, as they were in open court. One of the men became angry.

It was later ascertained that her medication could not have been put into the jug, as the water would have turned pink and had a cranberry taste.

Following the incident, a health and safety report was produced. It found that there were no immediate health and safety issues. However, the report made comments about Mrs Davies, including that she could not have thought that the medication was in the water, that she showed no remorse for her actions, and did not appear worried that the men might have taken the medication. The paper submitted that the incident amounted to gross misconduct.

Following a formal disciplinary process, Mrs Davies was dismissed, SCTS having decided that she had “knowingly misled” the men and SCTS about her medicine being in the water. Her internal appeal was unsuccessful. During the process, an OH report was obtained which stated that she had been suffering from peri-menopausal symptoms, which included "heavy bleeding which can continue for several weeks, and also stress, anxiety, palpitations, memory loss and pins and needles in hands and feet." It was further noted the "heavy bleeding has also caused severe anaemia, causing tiredness, light headedness and fainting."

Mrs Davies claimed that she had been unfairly dismissed and subjected to discrimination because of something arising in consequence of a disability (the SCTS agreed that she was disabled due to her severe menopausal symptoms), her dismissal being an act of unfavourable treatment, the reason for the dismissal being her conduct, and her conduct was affected by her disability. The SCTS agreed that she was disabled due to her severe menopausal symptoms. She had mistakenly advised the two men in court that they may have drunk water containing her medication due to her memory problems which arose from her peri-menopause and anxiety. These issues also impacted on the accuracy and consistency of the information that she had provided during the investigation.

The tribunal agreed that she had suffered disability discrimination. SCTS tried to justify its actions, saying that their legitimate aim had been that it required honest employees who act with integrity. The tribunal held that, while this was a legitimate aim, the dismissal of Mrs Davies had not been a proportionate means of achieving this aim. The tribunal was critical of the disciplinary procedure used, and did not consider that the dismissal was within the reasonable range of responses. It held therefore that she had also been unfairly dismissed, and she was reinstated.

What does this mean for employers?

This case was at tribunal level, and so not binding. It does not create any new legal principles.

Menopause, of itself, is not a disability. However, severe symptoms of menopause may constitute disabilities, triggering the obligation to make reasonable adjustments and protection from less favourable treatment. Other potential claims relating to menopause of which employers should be aware include discrimination on the grounds of sex and age.

Davies v Scottish Courts and Tribunals Service