“Are you menopausal?” – The Tribunal finds that making jokes at an employee’s expense amounted to harassment

I was only joking is rarely an adequate defence in an Employment Tribunal and the more sensitive the topic, the more uncomfortable the punchline.

One way in which an employee is protected from such behaviour is by section 26 of the Equality Act 2010 (EqA), which defines harassment as “unwanted conduct related to a relevant protected characteristic.” Similarly, should an employee report any such ‘unwanted conduct’ and, as a result, is subjected to detrimental treatment, this may amount to victimisation under section 27(d) of the EqA. Although “menopause” is not a protected characteristic under the EqA, age and sex are and bear a sufficiently close link to provide protection under that Act.  An example of this can be seen in the recent case of Best v Embark on Raw Ltd.

The Claimant was a 52 year old Sales Assistant who operated on a “zero hours” contract at a small pet food shop in Essex. Her relationship with the couple who owned the pet shop, Mr and Mrs Fletcher, became strained in March 2020 when she complained that measures implemented to protect staff from covid-19 were not being observed by her colleagues. Her numerous complaints about the safety of her working conditions were dismissed without investigation and she was told, “you just need to relax” and that she was “paranoid.”

The Claimant asserted that on 20 March 2020, Mr Fletcher mockingly asked if her concerns were due to her being menopausal and not in fact related to restricting transmission of the virus. The Claimant put her hands over her ears and said, “I am having none of that, I don’t even want to hear about it.” Despite this protest, Mr Fletcher continued to pursue the topic. In a telephone call on 24 April 2020 the Claimant informed Mrs Fletcher of what is referred to in the judgment as the “Menopause Remark”. Mrs Fletcher chastised the Claimant for making an accusation against her husband and blamed her for “moaning.” This resulted in the Claimant receiving a verbal warning and she was dismissed on 11 May 2020.

The Tribunal described the dismissal as “fundamentally flawed, procedurally unsafe and unfair” and commented that if the Claimant had satisfied the 2 years qualifying period of employment, an unfair dismissal claim would inevitably have succeeded on fairness alone. However, the Tribunal held in any event that the Claimant had been automatically unfairly dismissed under section 103A of the Employment Rights Act 1996 for having made a whilstleblowing protected disclosure and for which 2 years’ service is not required to be able to bring claim.

Further, the Tribunal held that the Claimant’s sex as a woman was a protected characteristic for the purposes of the EqA and the “Menopause Remark” had invaded the Claimant’s privacy broaching a highly sensitive topic which had the effect of violating the Claimant’s dignity and creating a humiliating environment for her at work and as such amounted to harassment under section 26 of the EqA 2010 on the grounds of the protected characteristic of sex. Mrs Fletcher’s response to the Claimant raising the Menopause Remark, in shouting at her and issuing a verbal warning, also contravened section 27 of the EqA 2010 and the Claimant’s victimisation claim succeeded.

Other Claimants have argued that the symptoms of menopause can amount to a disability triggering the duty for employers (under the EqA 2010) to make ‘reasonable adjustments’ to any provision, criteria or practice applied to staff which put disabled employees at a particular disadvantage and this was confirmed as a viable argument in Rooney v Leicester City Council [2021] when the Employment Appeal Tribunal confirmed that a woman who was suffering from severe menopausal symptoms was disabled for the purposes of the protections under the disability provisions of the EqA.

Both cases are a reminder to employers that the menopause is a deeply personal issue that needs to be handled with care and compassion and can lead to claims for both sex discrimination and disability discrimination. ACAS has produced guidance for employers which can be found here and, while there is no legal obligation to have one in place, a menopause policy can assist mangers in creating a supportive environment.

Should you have any questions about the impact of the menopause on your workplace, disability discrimination or your current menopause policy please do not hesitate to contact Linky Trott or anyone in the Employment Team.

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