In the case of Merchant v BT plc, the employee alleged that she had been discriminated against on the grounds of her gender when her employer failed to deal with her menopause symptoms in the same way that it would have dealt with other medical conditions.
Ms Merchant was underperforming in her role. She had been subject to the capability or performance management process a number of times, and was up to a final written warning. The issues with her performance were continuing, and her employers were now deciding whether to offer her alternative employment or dismiss. The employee provided her employers with a letter from her GP during discussions, which said that she was going through the menopause and that this “can affect her level of concentration at times” and also that she was suffering stress due to being a carer for two members of her family.
The performance management process in place said that there must be investigation into whether the underperformance of an employee was due to health factors. Despite this, the manager conducting the process decided to not investigate the possible impact of the employee’s menopause, and in particular he relied upon his knowledge of the menopause from the symptoms his wife and a colleague had experienced. He dismissed Ms Merchant, who then brought claims for unfair dismissal and direct sex discrimination.
Under the Equality Act 2010, direct sex discrimination occurs where, because of sex, A (in this case the employer) treats B (the employee) less favourably than A treats or would treat others.
The Tribunal upheld Ms Merchant’s claims and pointed out that the manager would never have adopted “this bizarre and irrational approach” with other non-female-related conditions. This was considered of particular significance, because women experience menopause in different ways and with varying severity of symptoms. The failure to refer her for occupational health assessment following the letter from the GP, before taking the decision to dismiss, was considered to be direct sex discrimination. The Tribunal said that a man suffering from ill-health with comparable symptoms from a medical condition (in this case, affecting concentration) and with performance issues, would not have been treated in the same way. This was also directly against the employer’s own policy.
Case law has repeatedly shown that employers should take medical information into account in capability situations where ill-health has been raised by the employee. This will usually involve an employer seeking advice from the employee’s GP and/or occupational health practitioners. While this case was at Employment Tribunal level only, and therefore not binding law, it is still a useful reminder to employers of the importance of following a fair process.
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