In Merchant v British Telecommunications plc a tribunal held that direct sex discrimination had occurred when an employer had failed to treat an employee’s menopause in the same way as other medical conditions when applying its performance management policy.

The facts

Ms Merchant had been the subject of BT’s underperformance procedure on and off for a number of years and culminated in a final warning being issued. When the problems continued, a process was commenced to determine whether Ms Merchant should be offered alternative employment or be dismissed. At a meeting to discuss the issue Ms Merchant presented a letter from her GP which said that the menopause was causing her to suffer from a number of health problems which can affect her level of concentration at times and she referred to her menopause several times during the discussion. The manager decided not to investigate her medical condition, although BT’s performance management policy clearly stated that managers must find out whether the underperformance was being caused by health factors. He dismissed Ms Merchant for incapability, stating that it was difficult to assess if the menopause did impact on performance.

The judgment

A tribunal upheld Ms Merchant’s claim for unfair dismissal and direct sex discrimination. The manager had failed to investigate the possible impact of the menopause, the reason being, according to his evidence, that his wife and his HR adviser had both been through the menopause and so he could make a judgment on the effect on Ms Merchant’s performance and the impact on her ability to concentrate. This failure was a clear breach of BT’s own performance management policy could only be explained by the fact that he did not take menopause, a strictly female condition, seriously as a medical condition and that he would never have adopted “this bizarre and irrational approach with other non-female-related conditions”, in circumstances where it is self-evident that all women will experience their menopause in different ways and with differing symptoms. Therefore, the failure to refer the claimant for medical investigation, after being informed of her menopause, before taking the decision to dismiss, was direct sex discrimination as a man with ill-health in comparable underperforming circumstances would not have been treated in the same way.

Implications

The case demonstrates not only the need to follow a company’s own policies and procedures ‘to the letter’, but also the need to ensure, in particular, that further medical investigation takes place where a medical condition is gender specific. The appellate courts have been crystal-clear that no action should be considered in ill-health capability situations until the ‘true medical position’ has been established. Here there was an even greater onus on the manager to do so when the employee presented him with a letter from her GP.