The claimant had worked for the respondent for 24 years before her dismissal. She was a Learning & Development trainer in the respondent’s Wholesale business. The claimant’s base was in Bristol.

Mr Kiernan became the claimant’s line manager in 2006. He was based in Swansea. On taking on the managerial role, Mr Kiernan was made aware of some performance concerns about the claimant. He made the decision to observe her performance himself, before making any decisions. Following observation, he too was concerned about her performance. The tribunal believed the concerns were genuine, and that Mr Kiernan was correct to highlight areas for improvement.

An Initial Formal Warning (IFW) was issued on 11 September 2009, and a Performance Improvement Plan (PIP) was put in place thereafter.

The claimant was on sickness leave from 11 November 2009 to 25 March 2010. Mr Kiernan understood this leave to be related to stress and anxiety associated with the claimant’s caring responsibilities for her mother.

The claimant was referred to occupational health who confirmed that she was “under a degree of pressure mainly associated with the significant factors surrounding her mother’s medical condition and long-term welfare”. She returned to work shortly after the completion of this report. A return-to-work programme was completed, and a fresh PIP commenced. There were still performance concerns. A Final Formal Warning (FFW) was issued on 6 September 2010 and a new, third PIP began the next day.

Two days before the FWW was issued, the claimant raised a grievance against Mr Kiernan saying he was unduly harsh, was not recognising her achievements and was not properly supporting her. Her grievance was not upheld and her subsequent appeal of the FWW was also dismissed.

Mr Kiernan continued to have concerns about the claimant’s performance and moved to what the tribunal called an approach “in which he would not tolerate anything other than perfection”. Various disputed events occurred, and the matter was referred to another manager, Mr Dagless, under the Stage 3 procedure. The claimant was invited to a meeting on 9 March 2011 to discuss her move to a different, lower paid role, or alternatively, the termination of her employment on the grounds of poor performance.

At the meeting, the claimant produced a letter from her GP which stated in addition to the stress of caring for her mother “on top of that she is going through the menopause which can affect her level of concentration at times”. The claimant told Mr Dagless several times during the meeting that she was going through the menopause, and confirmed that she had not previously mentioned it to Mr Kiernan.

Mr Dagless accepted at the tribunal that before dismissing for poor performance linked to ill health it would be important to have as much information as possible to understand the condition and what its prognosis is. However, in this instance he determined that because his wife had gone through menopause and his HR Advisor had also gone through menopause, he felt he had sufficient knowledge, and no further investigations were needed.

Mr Dagless had previously dismissed four people for performance concerns. In two of these cases the employees had raised health concerns. One had a blood disorder and the other a heart condition and psychological problems. On both occasion Mr Dagless had sought occupational health or other medical advice before making a decision.

The tribunal held that Mr Dagless did not consider the female-specific problem of menopause to be comparable to other health issues.  A hypothetical male comparator would in similar circumstances have been referred for further medical investigations before any decision on dismissal was taken. The tribunal held that the failure by Mr Dagless to have referred the claimant for medical investigation after the meeting, and his decision instead to dismiss without more investigation to be direct sex discrimination.

Practical Lessons 

When it comes to menopause, taboos need to be broken down. The claimant did not tell her immediate manager, nor anyone else, about her condition until her attendance at a potential dismissal meeting. The dismissing manager did not treat her condition as one worthy of further investigation. He made assumptions about her symptoms and prognosis based on a broad-brush approach and information garnered from his wife and his HR Advisor.

His mistake was thinking that all menopausal women present with the same symptoms and will react and deal with them in the same manner. Workers with menopause should, and must, be treated as individuals. Assumptions should not be made, and further investigations should be undertaken if necessary. A clearly drafted menopause policy, alongside training for staff and managers, should start to break down the taboo and ensure that all workers feel comfortable in discussing the issue of menopause in the same way that they would any other medical condition.