Tribunal: Claimant played down her symptoms
A law firm did not discriminate against a legal secretary turned apprentice with menopausal symptoms on the grounds of disability or sex, an employment tribunal has ruled.
Employment Judge Feeney described the apprentice’s absence levels between January and May 2019 as “alarming” given that the firm was a “small business and they needed someone specialised and reliable” to support a conveyancer who wanted to retire.
The tribunal heard that Ms A McMahon was employed as secretary by Rothwell & Evans, a high street firm based in Greater Manchester, in September 2017.
She started a conveyancing apprenticeship in April 2018, which later involved supporting an experienced conveyancer who wanted to retire.
Judge Feeney said Ms McMahon was diagnosed as “post-menopausal sometime in 2017”, that in January 2018 she reported “stomach cramps, joint aches, night sweats and general fatigue”.
From 2019 she “stated that she experienced almost daily symptoms of low mood, anxiety, brain fog, joint aches, pains and mood swings”, as well as hot flushes and insomnia.
Judge Feeney ruled that the problem for the firm was “not just the absences” but “the frequency of them at the beginning of the year and their length”, combined with Ms McMahon’s failure to keep the firm informed of when she was coming in.
On at least one occasion she said she was going to come in and then failed to turn up without giving notice.
In addition, the apprentice took a “last-minute day off”, emailing director Ron Pundick at 11pm the night before, “which was not a request but simply informing them that she would be off”. In Mr Pundick’s opinion, it was “the last straw”.
Judge Feeney said sex discrimination was “not a significant cause of her dismissal” and “the one absence due to needing to look after her ill son was only a small part” of her unreliability.
The judge said Ms McMahon’s issues with menopause did meet the definition of disability within the meaning of the Equality Act 2010 “on the basis of cumulative effect”, but the effects were not “substantial and adverse”.
“In respect of fatigue, the claimant could not help us to distinguish between fatigue resulting from her busy lifestyle, being a single parent and working in a demanding job and studying, with fatigue resulting from the menopause.”
Judge Feeney said, in any case, the law firm “did not have the requisite actual or constructive knowledge” that the claimant was disabled.
“In cross-examination the claimant also said she played down her symptoms as she did not want to appear unreliable.
“Whilst we have sympathy with the claimant and understand why she did this, it does mean that there was little to trigger anything in the respondent’s mind to make them make further enquiries.”
The judge said Ms McMahon was dismissed for a combination of “absences, short-notice absences and a failure to advise the respondent of a continuing absence”.
There was no evidence that the claimant’s disability was the reason for her dismissal, or that “had somebody in her role been absent but not been disabled that they would not have been dismissed”.
However, the judge said it was “arguable” that the reasons for dismissal included “something rising from her disability”.
Nevertheless, the tribunal considered that Ms McMahon’s dismissal was “a proportionate means of achieving a legitimate aim”.
It stressed that the tolerance of her absences changed after the change in job role; the firm was “extremely anxious” to keep the conveyancer she was supporting happy so that he would continue to work and not fully retire.
“Her role became critical and her absences were much more keenly felt and put the respondent at risk. The change in job role, which made all the difference, had no connection to the claimant’s disability.”
There was no question of there being a “pool of people who could cover for each other if someone was off sick”.
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