Employer lessons from teacher's menopause bias win
On May 31, a Scottish employment tribunal made its decision in Allison Shearer v. South Lanarkshire Council and awarded a teacher over £60,000 ($77,829) for disability discrimination and unfair dismissal, following her dismissal for ill health after a period of long¬term sickness absence.
The dismissal followed her objections to moving to a different school, the prospect of which caused her menopausal symptoms to deteriorate.
So what lessons can be learned from the Shearer case, which is the latest example in a growing crop of menopause-related employment tribunal litigation? And what is on the horizon for menopause support at work following the Labour Party's landslide victory at the general election?
Facts of the Shearer Case
Allison Shearer, who was employed as an English teacher by South Lanarkshire Council, suffered from menopausal symptoms, stress, anxiety and depression. It was agreed by the parties before the tribunal that this amounted to a disability under the Equality Act 2010 at the relevant period.
Following an instruction by the head teacher to move from her current school to another school, Shearer's symptoms worsened. She became extremely anxious at the prospect of relocating to the new school where, she believed, there were high levels of violence, injuries to staff and a culture of blaming staff for being assaulted.
Objecting to the move, Shearer informed human resources during a confidential menopause discussion that she valued staying in her present school as it was a settled workplace where she had supportive colleagues. However, the council insisted that she would have to move and appointed a supply teacher to backfill her existing role.
Subsequently, Shearer commenced a period of long-term sickness absence, during which an occupational health adviser reported that the cause of her work-related stress, which manifested in significantly reduced mood, motivation, concentration and self-confidence, was the instruction to move to the new school. A further occupational health report found that once the "known trigger" — i.e., the instruction to move schools — was addressed, Shearer's symptoms were likely to resolve.
After raising an ultimately unsuccessful grievance, Shearer attended a capability hearing at which she was offered two alternative posts. Shearer was given four working days to consider the offers, and she decided to reject both roles, stating that the first post was "likely to exacerbate her feelings of stress and anxiety." In relation to the second post, which involved working with pupils with "severe and profound learning needs," she felt she did not have the requisite skills or training.
The council terminated her employment on capability grounds and her appeal against dismissal was rejected.
Shearer brought claims in the Scottish employment tribunal for unfair dismissal, a failure to make reasonable adjustments and discrimination arising from a disability.
Reasonable adjustments the employer should have made
In the Glasgow Employment Tribunal's view, the council should have allowed Shearer to continue working in her existing job location because her aggravated symptoms were "inextricably linked" to the instruction to move to the other school. This was confirmed by occupational health reports and "the overwhelming likelihood" that Shearer's sickness absence would have ended if she were allowed to work at any suitable location in any other suitable role.
The tribunal noted that there were other means of covering the post in the other school, as demonstrated by the steps taken by the council to cover the post during Shearer's sickness absence.
The tribunal found that the council had a large pool of around 3,500 teachers from which to source alternative candidates for the post. Moreover, Shearer's original post continued to exist, and she was a suitable candidate to fill that post. The supply teacher who the council had used to backfill Shearer's original post was "inherently movable."
Turning to the suitable alternative positions, the tribunal considered that the council had failed to conduct a search over a reasonable time period and that, had it done so, is likely to have found suitable alternative roles for Shearer.
Tribunal's findings on unfair dismissal and discrimination arising from a disability
The tribunal upheld the unfair dismissal claim, finding that no reasonable employer would have dismissed Shearer without first conducting a reasonable search for alternative employment and giving her a reasonable period of time in which to consider them.
Shearer also succeeded in her claim for discrimination arising from disability, with the tribunal finding a violation of Section 15(1)(a) of the Equality Act 2010 because:
- The dismissal constituted unfavorable treatment;
- The reason for that treatment was Shearer's absence; and
- The absence arose in consequence of her disability.
The tribunal noted the council's undisputed legitimate aims of:
- Ensuring good levels of employee attendance;
- Delivering education;
- Taking account of the negative impact of Shearer's continued absence on the council's resources; and
- Adopting a fair and consistent application of the council's absence policy.
However, the tribunal held that the dismissal was disproportionate to those aims in all the circumstances.
Shearer was awarded a total of £61,074.55, which included a medium band award for injury to feelings of £15,000.
What does this mean for employers?
Although this is a first-instance decision by a Scottish employment tribunal and not binding on subsequent decisions, the case is a reminder of how a person's menopausal symptoms can amount to a disability, triggering the employer's duty to make reasonable adjustments once the disability is known or ought reasonably to be known, and protecting the employee from disability discrimination.
This follows the 2021 decision in Rooney v. Leicester City Council,1 where the
Employment Appeal Tribunal set a legal precedent when it concluded that menopausal symptoms could meet the legal definition of disability for the purposes of Section 6 of the Equality Act 2010. In Shearer's case, it was agreed by the council that she was disabled within the meaning of the legislation.
As a result, when dealing with an employee's sickness absence, performance or capability issues in circumstances where the employee has disclosed, or the employer ought reasonably to know, that they are suffering with menopausal symptoms, managers should consider the employee's symptoms and circumstances carefully, bearing in mind that they may amount to a disability.
Regardless of the legal position on disability, an emotionally intelligent and supportive approach remains paramount.
Even where the disability discrimination provisions are not triggered, for example where menopausal symptoms are intermittent and do not therefore meet the "long-term" requirement in Section 6 of the act, other strands of discrimination protection may come into play, such as sex discrimination and/or age discrimination.
Harassment is also a potential risk, for example where the employer is perceived to turn a blind eye to remarks about a colleague's menopause.
In 2022's Best v. Embark on Raw Ltd.,2 an employment tribunal found that a colleague's comments to the claimant about the menopause and the continued pursuit of the topic constituted unwanted conduct, which had the effect of violating the claimant's dignity and of creating a humiliating environment for her at work. Consequently, her claim of unlawful harassment — against the employer — was successful.
What will the Labour Government do to boost menopause support at work?
Menopause workplace support was debated in the House of Commons on May 15,3 with Labour's Anneliese Dodds stating that a Labour government would require employers with 250 or more employees to produce menopause action plans, stating how they will support employees through menopause. Dodds added that the Labour party would also publish guidance for smaller businesses.
Earlier this year, on Feb. 22, the Equality and Human Rights Commission published guidance for employers on menopause in the workplace,4 encouraging conversations around menopause and sharing examples of workplace adjustments that employers can make to support their workers and prevent discrimination.
An increasing public awareness of the impact of menopause on people's working lives and potentially strengthened legislative measures on the horizon should prompt all employers to put in place effective and emotionally intelligent measures to support their people affected by menopause.
Such measures should feed into organizations' wider diversity, equity, inclusion and belonging strategies. Where appropriate, this will involve consulting with employee resource groups or communities that are affected by menopause, so that measures are tailored sufficiently to reflect the unique challenges they face in your workplace.
Ultimately, by failing to engage with this issue, a business risks not only losing the valuable talent of people who have often reached the pinnacle of knowledge in their particular field, but it also jeopardizes how clients, suppliers and other stakeholders view the business's brand, as well as worker productivity and general morale.
As the so-called war for talent continues, implementing effective menopause support is not only a quick win but is potentially important in managing legal risk and the right thing to do for half of the working population.
This article was originally published in Law360.
1Rooney v. Leicester City Council EAT/0064/20 & EAT/0104/21 https://assets.publishing.service.gov.uk/media/615eea73e90e07198108146c/ Ms_M_Rooney_v_Leicester_City_Council_EA-000070-DA__Previously_UKEAT_0064_20_DA__EA-2021-000256-DA_Previously_UKEAT_0104_21_DA_.pdf - see paragraph 53.
2Best v. Embark on Raw Ltd. ET/3202006/20 https://www.gov.uk/employment-tribunal-decisions/ms-l-best-v-embark-on-raw-ltd-3202006-slash-2020.
4https://www.equalityhumanrights.com/guidance/menopause-workplace-guidance-employers.
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