Employment Law Case Update: Davies v Scottish and Tribunal Service

In the case of Davies v Scottish Courts and Tribunal Service, Ms Davies was a court officer, employed for 20 years by the Scottish Courts and Tribunal Service (SCTS) with a flawless service record.

Ms Davies was going through the menopause, which left her with symptoms such as bleeding heavily, feeling fuzzy, emotional and she was severely anaemic, which affected her concentration levels. After referral to a clinic she undertook hormone replacement therapy which slightly helped with the bleeding. When Ms Davies’ managers at the SCTS became aware of her condition they made helpful adjustments to her working practices, such as working in rooms near toilets, no longer covering jury court and no longer undertaking mail duties.

In February 2017, Ms Davies was prescribed medication, to be diluted in water and then drunk. She took the medication to work with her to drink throughout the day. At one point, Ms Davies left the court room and upon her return she discovered that the water jug on her table had been emptied, but she could not remember if she had yet diluted her medication into it.

Ms Davies shortly found two men drinking water given to them by the court clerk. Upon asking them where they had received it, they asked her why she was concerned. Ms Davies told them that her medication may have been in the water, but as she was in open court she refused to say what the medication was for. One of the men became quite irate and concerned about what he had been drinking.

The SCTS Health and Safety team ascertained the type of medication and took medical advice on the potential risks of taking it.  Later that day they informed the two men of their findings, advising that the water would have turned pink and changed taste had the medication been present - so it had not been in the water.

The SCTS compiled a health and safety report which found that there were no immediate health and safety risks. However, some comments within the report went beyond its remit, giving various opinions about Ms Davies’ involvement in the incident, reaching the conclusion that Ms Davies must have clearly known that the medication was not present and that she showed no remorse for her actions.

The SCTS held a formal disciplinary procedure, during which an occupational health report was obtained. The report found that Ms Davies’ condition caused, in amongst other things, amnesia. Despite this, the disciplinary found that Ms Davies had knowingly misled the men into believing her medication was present. Ms Davies was dismissed, and the dismissal was upheld on internal appeal.

Ms Davies brought claims to the Employment Tribunal for unfair dismissal and discrimination arising from a disability. It is important to note that menopause is not of itself a disability – however, in this case, due to the severe symptoms it was agreed by all the parties that Ms Davies was disabled.

The Tribunal found in Ms Davies’ favour on both claims, finding in particular that:

1. the health and safety report went beyond its remit and the comments about Ms Davies tainted the disciplinary process, resulting in it being unfair;
2. the disciplinary panel did not take her memory loss, confusion and stress into account in deciding whether she knew the medication was present; and
3. the dismissal was because of the confusion and stress arising from her disability.

Employers should be wary that claims of this nature may be brought. In relation to menopausal symptoms, employers should also watch out for situations which may amount to indirect discrimination, harassment, victimisation or a failure to make reasonable adjustments for the employee.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.