Employment Law Cases

Best v Embark on Raw Ltd

An employer’s derogatory and inappropriate remarks about a female employee’s age, in particular that she might be menopausal or be experiencing stereotypical menopausal symptoms, amounted to harassment on the grounds of sex and age.

Background

Ms Best worked a sales assistant at a small business selling pet food. She had less than one year’s service when she was dismissed for what her employers claimed was her rude and confrontational manner with co-workers and managers.

There had been an altercation with the owner at which Ms Best claimed the owner, Mr Fletcher, shouted at her that she ‘must be in her menopause’ and said that her husband would start looking ‘at other younger women now’. She brought various claims at tribunal, among them one of harassment under s. 26 of the Equality Act 2010 related to protected characteristics of age and sex. (Another of her claims was for automatic unfair dismissal for having made qualifying protected disclosures).

Tribunal decision

Her complaint of harassment was upheld.

While the tribunal could not say the precise words as alleged had actually been said (because of a lack of independent witnesses), it did find that Mr Fletcher had invaded Ms Best’s privacy, broached a highly sensitive topic for her and acted tactlessly in directly asking her, as an employee having the protected characteristic of sex as a woman, whether she was menopausal. Mr Fletcher asked that question even after Ms Best had made it quite clear that she did not wish to participate in any such discussion. A customer had been describing a ‘hot flush’, Ms Best put her hands over her ears and said: ‘I am having none of that, I don’t even want to hear about it’. Mr Fletcher continued to pursue the topic even after the customer had departed and that was unwanted conduct which had the effect of violating Ms Best’s dignity and of creating a humiliating environment for her at work.

The tribunal also held that Mr Fletcher made comments about Ms Best’s age which had the purpose and certainly the effect of violating her dignity and of creating a degrading, humiliating and offensive environment for her at work. The incident occurred when, aware of the Ms Best’s considerable anxiety about the COVID-19 situation, Mr Fletcher read out a newspaper article and pointed out that it said that doctors and nurses may have to ‘play God’ so that younger and fitter people might be prioritised for ventilator treatment because ‘they are more likely to survive’. This exacerbated Ms Best’s anxiety because Mr Fletcher was clearly implying that she was not one of those ‘younger and fitter people’ with priority.

Link to judgment: https://www.bailii.org/uk/cases/UKET/2022/3202006_2020.html

Comment

The menopause at work and how women who are going through are treated is very much a live topic at the moment. A recent survey found that 75% of menopausal women feel unable to discuss the issue with colleagues and do not get the support they need. And in 2019, BUPA/CIPD research found that almost 1 million women had left their jobs because of a mismatch between their role and menopausal symptoms.

Employers need to be very careful not to make comment about this sensitive subject which will cause embarrassment or offence as they could find themselves on the end of a claim of this kind. This topic should be one that is covered within the equal opportunities training that employers should be giving to their employees.