Employment Tribunal Upholds Menopause Harassment and Constructive Dismissal Claims

The key facts

The Claimant commenced work with the First Respondent on 6 June 1995 as an Office Manager.

In August 2021, the Claimant informed the Respondent that she had menopause and that she was experiencing a number of serious symptoms which caused her difficulties. There were long delays in getting the Claimant fully assessed through the NHS and therefore, the Respondent agreed to reimburse her for getting an assessment through BUPA.

During mid-October 2022, the Claimant underwent a blood test to check her hormone levels. In mid-November 2022, she also underwent a scan to investigate menopausal bleeding. The Claimant also suffered from anxiety and was prescribed antidepressants by her doctor. As a result of menopause and her anxiety, she suffered from loss of concentration and brain fog.

On 13 December 2023, the Claimant did not attend work due to heavy snow, which resulted in her being snowed in. She informed Jason Clark (a Director of the First Respondent) of this, and he agreed that she should work from home, something she did often. The following day the Claimant told Jason Clark that she was unwell due to heavy menopausal bleeding and had strong painkillers and requested to work from home.

On 15 December 2023, the Claimant arrived at work and on her way to the office the Second Respondent spoke to her in a sarcastic tone: “Oh I see you’ve made it in!” The Claimant began to explain herself, to which the Second Respondent gave her a disgusted look and walked away.

The Claimant was upset and angry about the Second Respondent’s behaviour and shouted to Jason Clark to have a conversation. During the conversation, the Second Respondent interrupted and said to the Claimant that “menopause, menopause a’biddy f****** gets it, just get on wi’ it, that’s your excuse for everything.” The Claimant was shocked by this comment and began to explain that he had no understanding of what she was going through, to which he dismissively mentioned “a’biddy has aches and pains” in relation to the menopause. The Claimant became more upset, began crying and felt hysterical and left the premises.

The Claimant was subsequently signed off work on 19 December 2023, for 28 days. The Claimant submitted a grievance which outlined the incident and the impact it had on her; the Respondent declined to respond.

On 19 December 2023, the Claimant discovered that she no longer had access to her remote system used to work from home. Following this and the lack of acknowledgement of her grievance, the Claimant decided that she had no other alternative but to resign, which she notified the Respondent on 22 December 2023.

The Claimant subsequently brought the following claims in the Employment Tribunal:

• Harassment under section 26 of the Equality Act 2010 (EqA 2010); and
• Constructive unfair dismissal under section 95 of the Employment Rights Act 1996 (the “ERA 1996”).

The Employment Tribunal’s Judgment

The Claimant claimed that the incident on 15 December 2023 amounted to harassment under section 26 of EqA 2010 on the grounds of her sex. This was due to menopause being a condition that only affects women.

The Tribunal upheld the Claimant’s claim for harassment as they found that it was clear that the Second Respondent’s conduct had the purpose of violating the Claimant’s dignity. The Second Respondent was also aware of the Claimant’s menopausal symptoms and that the Respondent had reimbursed her for a medical assessment.  The Tribunal clarified that even if the Second Respondent had not intended to offend, which he did, the comment would have still had the same impact on the Claimant and therefore was unreasonable and amounted to harassment. The Claimant was awarded £10,228 in respect of injury to feelings for the harassment.

The Claimant also brought a claim for constructive unfair dismissal under Section 95 of the ERA 1996. The Tribunal had to consider whether the Claimant resigned as a result of the Respondent’s conduct which amounted to a fundamental contractual breach of the implied term of trust and confidence. The Tribunal found that the Second Respondent was guilty of statutory harassment and had no doubt that his actions were sufficiently serious to allow the Claimant to resign. The Tribunal noted that the Claimant did try to repair the relationship by submitting a grievance; however, this was not acknowledged, and the Claimant’s remote access was withdrawn, without explanation. Therefore, it was apparent to the Tribunal that the Respondent’s understanding was that the Claimant had resigned. The Claimant was awarded a total of £18,926.50 in respect of her claim for constructive unfair dismissal.

Takeaways

This case is a stark reminder that employers must take menopause seriously and ensure that managers respond appropriately, with empathy and respect. It is important that managers are given menopause awareness training so they understand the impact symptoms can have on employees and put the appropriate measures in place to support them. Employers should ensure that all staff avoid stereotypes or dismissive language and encourage open conversations about menopause to foster a supportive workplace culture.  Menopausal symptoms can also amount to a disability; whilst this was concluded in the particular facts of this case, we have seen an increase in litigation from employees bringing claims of disability discrimination in this area.