Facts
Mrs Karen Farquharson ('the Claimant') was employed by Thistle Marine ('the Respondent') from 6 June 1995 until her resignation on 21 December 2022. In August 2021, the Claimant informed the Respondent that she was experiencing serious symptoms from the menopause which were causing her difficulties. In mid-October 2022, the Claimant had to undergo a blood test to check her hormone levels due to the impact of the menopause. In November 2022, the Claimant also underwent a scan to investigate menopausal bleeding. The Claimant suffered from anxiety, loss of concentration and brain fog as side effects of the menopause. She was prescribed anti-depressants by her GP as a result.
In December 2022, the Claimant worked from home for a couple of days due to heavy snow and being unwell from heavy menopausal bleeding. On 15 December 2022, she arrived at work at 2pm, to which director and company founder (Mr Jim Clark) remarked “Oh I see you’ve made it in!” despite her explanations, Mr Clark expressed disgust and walked away from the Claimant. A conversation then took place with Mr Clark and the Claimant in which he remarked “menopause, menopause a’biddy f**king get’s it, just get on wi’ it, that’s your excuse for everything”. The Claimant further explained the discomfort and challenges she faced due to the heavy bleeding, and was once again dismissed by Mr Clark who remarked “a’biddy has aches and pains”.
The Claimant became upset at these comments and left the premises. She raised a grievance on 16 December 2022 after not receiving any correspondence or apology regarding Mr Clark's behaviour. The Claimant was then signed off work by her GP for 28 days.
On 19 December 2022, the Claimant discovered that the Respondent had cut off her remote access to the accounts system she used from home meaning she could no longer work from home. There had also been no acknowledgement of her grievance. The Claimant resigned on 21 December 2022.
The Claimant brought claims for constructive dismissal, harassment on the basis of her gender and unpaid wages in the Employment Tribunal. She was successful in all three claims. The claim for harassment is of particular note.
Legal principle
To bring a successful claim for harassment under section 26 of the Equality Act 2010, there has to be unwanted conduct relating to a protected characteristic (relevant protected characteristics are as follows - gender reassignment, race, religion or belief, sex, sexual orientation, disability and age) which has the purpose or effect of:
- violating the employee's dignity; or
- creating an intimidating, hostile, degrading, humiliating or offensive environment.
In this matter the Tribunal found the test had been met as:
- Mr Clark's intention was not to make an innocent remark, but make his feelings clear about what he regarded as excessive time spent away from the workplace.
- Mr Clark was aware of the Claimant's difficulties with the symptoms of the menopause and was also aware that the company had reimbursed her for a medical assessment.
- Even if Mr Clark had not sworn or his tone had been neutral/friendly, the comments made in that context, would have still have amounted to harassment.
- The protected characteristic was the Claimant's sex as the references were made regarding the menopause.
Comment
The facts of this case are particularly disturbing given the hugely disparaging remarks made. However employers should be aware that comments made, even if not so extreme, could result in successful claims for harassment, even if the intent was not to harass. The wording of the Act is such that it is the purpose or effect of an act that is considered i.e. the way in which a statement is made. Whilst awareness of the impact of menopause is increasing in general, how it is managed and the guidance employers should give to those managing and working alongside others who may be affected by menopause is still fairly limited. Given that the fastest growing cohort of workers in the UK are women in the age bracket for menopause, it is vital that there is better awareness and support from employers. Without a constructive pro-active approach, employers are at risk of claims, losing talent and failing to attract talent.
It is also worth noting that claims under the Equality Act 2010 for disability discrimination are also increasingly pursued when connected to menopause as it is a condition that can often satisfy the test for disability. It is therefore not uncommon when dealing with litigation to have to answer a variety of discrimination claims. Age is a further characteristic often connected with menopause claims.
At present the government are not planning to legislate to make the menopause a protected characteristic as they believe it is sufficiently covered by the Equality Act 2010 by way of the protected characteristics of age, sex and disability. However, menopause is still very much still on the agenda and the government maintains that women's health remains a top priority. Please see our Legal Update for further information.
Please also see our Menopause in the Workplace Legal Update for further guidance on the menopause and practical steps employers can take to help support their workforce.
