EAT: HHJ Tayler, EA-2020–000070-DA, EA-2021–000256-DA, [2022] IRLR 17, 7 October 2021

The Claimant brought claims of direct sex and disability discrimination after she received a formal warning in respect of sickness absence which she attributed to menopausal symptoms. She also complained that when she had told her team manager that she was suffering from hot flushes he had told her that he also got hot in the office; that her appeal against the written warning had been exclusively male and that she had been refused a female doctor for an occupational health assessment. A tribunal struck out her claims, ruling that her menopausal symptoms did not amount to a disability and that the sex discrimination claim had no reasonable prospect of success. The EAT (Judge James Tayler) allowed the appeals, ruling that the symptoms of which the claimant complained (hot flushes and sweating, palpitations and anxiety, night sweats and sleep disturbance, fatigue, poor concentration, urinary problems and headaches) amounted on the evidence to physical impairments that were long standing (having lasted in excess of a year at the time of the hearing) and that the tribunal had erred in finding without explanation that they did not substantially affect on her ability to carry out day to day activities in view of the uncontested evidence thather symptoms resulted in her forgetting to attend events, meetings and appointments, losing items, forgetting to lock and put the handbrake on her car and to lock her house on leaving it, leaving household appliances switched on, experiencing dizziness, incontinence and joint pain and spending lengthy periods in bed due to fatigue/exhaustion. The EAT, which also ruled that the tribunal had erred in failing to consider her allegations of sex discrimination, remitted the case for determination of the question of disability.

Claimant: David E Grant and Patrick Tomison, instructed by Advocate

Respondent: Victoria Brown, instructed by the council