The Scottish Courts and Tribunals Service (SCTS) has been ordered to reinstate a court officer who was fired after confusion over whether her cystitis medication had been drunk by two men. She will also be paid £19,000.
Included in the award was £5,000 for injury to feelings for disability discrimination, as the Glasgow Employment Tribunal found that her dismissal was linked to disability for the purposes of section 15 of the Equality Act 2010 – a rare instance of the menopause being cited in a disability claim, lawyers say.
The SCTS employed Mandy Davies as a court officer from 1997. She had substantial medical problems related to menopause onset and had received medical treatment for several years.
In February 2017, Davies was prescribed Cystopurin – a granulated medication that is taken by dissolving it in water – for a bout of cystitis. Davies kept this in a pencil case on her desk.
However, when she returned to court following an adjournment, she found that her personal items had been moved and the water jug on her table emptied. Noticing two men in the public court area drinking water, she became concerned, as she was worried it was the water from her desk and could not remember if she had already diluted her medication in it.
She asked the men where the water had come from. They explained the clerk had given it to them. When they asked why she wanted to know, she explained that she may have diluted some medication into the liquid but declined to say which medication as they were in open court.
The judgment noted that one of the men – who was involved in the court case taking place at the time – “launched into a rant and made comments to the effect of ‘trying to poison the two old guys in the court’ and asking if he would grow ‘boobs’”.
The healthy and safety team investigated the incident and Davies was required to provide a written statement, in which she mentioned she had put the medication into the water.
A health and safety meeting was then held, by which time the team had learned that the medication could not have been in the water, as it would have turned the water pink.
But the tribunal found that the health and safety report produced off the back of the investigation and the meeting went “far beyond” the health and safety issues it was meant to address, including allegations that Davies “showed no remorse for her actions and did not appear worried that [the two men] had taken this medication”.
The incident report concluded that Davies had “not shown [the SCTS’s] values and behaviours” and recommended formal disciplinary action for her “gross misconduct”.
Davies acknowledged that she was mistaken about the medication being in the water, and provided an amended statement. However, the SCTS proceeded to a disciplinary investigation.
Davies explained that, when she noticed her pencil case was open, she became flustered and agitated. She added that she experienced anxiety attacks and the open case made her forgetful and concerned.
The SCTS concluded that her conduct breached its values and behaviours. It referred her to occupational health, which confirmed that she had peri-menopausal symptoms including severe anaemia, causing tiredness, light-headedness and fainting.
However, one of the men who had drunk the water had subsequently lost the court case he was involved in and claimed the events had caused him to “lose concentration and focus”. The SCTS agreed an appeal of his case would need to be heard, which it said “aggravated” Davies’ “breach of conduct”.
The SCTS invited Davies to a disciplinary hearing and later dismissed her for gross misconduct. Davies unsuccessfully appealed the decision.
At tribunal, the SCTS conceded her disability and that she was disabled at the time of her dismissal. The tribunal found her “a wholly credible and reliable witness”.
The tribunal found that the SCTS had both unfairly dismissed Davies and discriminated against her on grounds of disability, particularly as it had failed to consider her disability’s impact on her conduct.
Barry Stanton, head of employment law at Boyes Turner, noted that, although there was “no discussion” in the judgment as to whether Davies was disabled, it “does indicate that in some cases a woman who is going through the menopause may be disabled, provided that the symptoms she suffers from have a substantial adverse effect on her ability to carry out normal day-to-day activities”.
Karen Jackson, solicitor and managing director at didlaw, added: “This is the first disability discrimination case I am aware of around menopause. Clearly, symptoms of peri-menopause such as severe bleeding, memory loss, anxiety and similar can give rise to a section 6 Equality Act disability provided the symptoms have a long-term and substantial adverse effect on normal day-to day-activities.”
As well as the £5,000 granted for injury to feelings, the SCTS was ordered to pay £14,009.84 for lost pay between the date she was fired and the date she was due to be reinstated.
Updated 19 June 2018: People Management now understands this decision is being appealed.