Employment tribunals featuring menopause are on the increase

Menopause is increasingly recognised as important workplace issue, but what happens when  menopausal symptoms begin to affect an employee’s ability to work?  

(The recent Employment Tribunal decision in Chantelle Van Vliet v 1. Footlaffs Limited, 2.  Karen Lesley Dodds, 3. Always Time To Be Me Ltd, 4. Stephen Dodds, provides a stark  reminder to employers on how not to deal with the menopause in the workplace.)  

Background  

Ms Van Vliet was employed by the First Respondent as a Senior Aesthetic Therapist from  June 2022 until her termination of employment on 31 May 2024.  

Ms Van Vliet was a 48 year old woman at the time of dismissal and had experienced  significant perimenopausal and menopausal symptoms from 2022 onwards. These included  migraines, hot flushes and recurrent urinary tract infections which became increasingly  problematic during 2023 and early 2024. In April 2024, Ms Van Vliet discussed her symptoms  with the Second Respondent, including the possibility of hormone replacement therapy (HRT).  

The impact of Ms Van Vliet’s symptoms was significant enough that, on 10 May 2024, she  took a day of sickness absence because she was unable to cope. 

On 20 May 2024, Ms Van Vliet submitted a statutory flexible working request to her line  manager. Importantly, she expressly explained that she had recently started experiencing the  menopause and that it was particularly affecting her when working later shifts. Subsequently,  she proposed to change to her working pattern and offered a three-month trial period  to the First Respondent. The request was acknowledged, but no substantive response was  provided.  

Just ten days later, Ms Van Vliet was removed from the rota despite having clients that day.  The following day, all of the First Respondent’s staff were dismissed by way of redundancy.  However, all other therapists doing aesthetic work were offered a new contract with phoenix  business operated by the Second and Fourth Respondents which was incorporated a month  later as the Third Respondent.  

EJ Midgely determined that the Claimant’s employment should have transferred over to the  Third Respondent by way of TUPE.  

Ms Van Vliet brought the following claims: automatic unfair dismissal, detrimental treatment  as a result of raising a flexible working request, direct age disability and sex discrimination,  discrimination arising from disability, failure to make reasonable adjustments, victimisation,  unlawful deductions from wages and notice pay.  

Judgment 

Ms Van Vliet won her claims for detrimental treatment as a result of raising a flexible working  request, failing to make reasonable adjustments, victimisation, wrongful dismissal and  unlawful deduction of wages.  

Ms Van Vliet succeeded in establishing that she had suffered a detriment after submitting a  statutory flexible working request which outlined her menopausal symptoms. The Tribunal  found that her flexible working request was a reason for her subsequent exclusions from re employment (the detriment) following the TUPE transfer. The Respondents could not produce  any evidence to contradict this claim.  

Ms Van Vliet’s menopausal symptoms amounted to a disability under section 6 of the Equality  Act 2010, and her flexible working request was connected to the effects of that disability. The  Tribunal found that the decision not to offer her continued employment arose from matters  connected with her disability and the Respondents could not establish sufficient justification  for the treatment. Therefore, her claim for discrimination arising from a disability  succeeded.  

The failure to make reasonable adjustments claim succeeded on the basis that Ms Van Vliet’s  flexible working request proposing to alter her shifts was deemed to be reasonable. This is  because it would have been reasonable for the Respondents to allow Ms Van Vliet to change  her shifts; as her request was modest and sensible, and allowed her to continue in  employment so she could test out the new shifts on an initial three month trial period. The Respondents had at least constructive knowledge of Ms Van Vliet’s disability and as a result  breached their duty to provide reasonable adjustments to her.  

Ms Van Vliet’s flexible working request was treated by the Judge as a protected act entitling her to bring a claim for victimisation. The Respondents failed to show that the  omission of not offering re-employment to Ms Van Vliet was not caused by the protected act. 

The Respondents admitted that Ms Van Vliet had not been paid for the period 26/4/24 to  31/5/24. The Judge also found that the Respondent had failed to pay Ms Van Vliet’s notice  pay on termination.  

The Judge awarded a total of £32,237 in compensation. This comprised of the following  awards £16,422.31 for injury to feelings, £12,076.75 for loss of earnings, £3,227.60 for unpaid  wages and £510.64 for notice pay, as well as interest. Both the Second and Fourth  Respondent were held to be liable.  

Takeaways  

This case highlights the importance of employers taking menopause related concerns  seriously, particularly where symptoms may amount to a disability under the Equality Act 2010.  

Where an employee explains that menopausal symptoms are affecting their ability to work,  employers should consider whether reasonable adjustments are required and engage  meaningfully with any flexible working request. The decision also demonstrates that a request  for flexible working may constitute a protected act where it is, in substance, a request for  reasonable adjustments meaning that any detrimental treatment following the request could  give rise to both a claim for discrimination and victimisation, as was the case here. 

Employers should therefore ensure that decisions affecting employees experiencing the  menopause are properly considered, documented and supported by legitimate business  reasons.  

Practical steps to support employees going through the menopause may include a supportive  conversation with the employee, obtaining occupational health advice, identifying and trialling  reasonable adjustments, reviewing policies and practices to understand whether they place  an employee experiencing the menopause at a disadvantage. This ties into the Government’s  introduction of the new menopause action plans set to come into force in Spring 2027. 

Thank you to Laura Wharton and Catherine Gallacher from JMW Solicitors LLP for this guest blog.