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Menopausal bus driver loses disability claim

Davie's claim for disability discrimination was dismissed

A bus driver’s menopausal symptoms did not qualify as a disability, and her claims of unfair constructive dismissal and discrimination were rejected by the tribunal.

Johanne Davie, a bus driver for Lothian buses in Edinburgh, began suffering significant menopausal symptoms in April 2021 including constant bleeding and difficulty sleeping due to muscle tension.

This caused brain fog which resulted in her having difficulty remembering bus routes, difficulty finishing conversations and having to write things down on her hand.

She was unable to carry out household tasks, clean, cook, look after her grandchildren or socialise. At some points she was even unable to even take care of her personal hygiene.

Read more: Menopause at work: what's the employer's responsibility?

The tribunal heard that she put all energy into doing her jobs, leaving her with no capacity to cope with her normal day-to-day activities.

As a result of her symptoms, Davie was forced to reduce her hours and work for Lothian Buses on a part-time basis until she recovered.

However, the tribunal ruled that Davie did not have a disability.

Under the Equality Act, a disability is defined as a physical or mental impairment which has a substantial and long-term adverse effect on an individual’s normal day-to-day activities. 

Pam Loch, MD of HR and law firm, Loch Associates Group, said Davie was not found to have a disability as her condition was not long term.

“Davie was able to prove that the impact of the menopausal symptoms had a substantial adverse effect on her normal day-to-day activities.

"Where she failed was in persuading the tribunal that she met the requirement of it being a long-term condition. The evidence she produced showed that her symptoms were only present between April to July 2021.

“To be regarded as long-term the claimant has to show that the condition has lasted for at least 12 months, is likely to last for 12 months or for the rest of the person’s life.”   

The decision contrasts with a previous case, in which a former Direct Line employee’s menopause symptoms were classed as a disability. This resulted in an award of £64,645 in damages after the firm failed to make reasonable adjustments.

Read more: Menopause ruled a disability in Direct Line tribunal

Loch said menopause cases should be considered on an individual basis: “It is essential when considering claims involving a potential disability under the Equality Act to consider each individual scenario on a case-by-case basis. 

“This is especially true when considering claims where there can be a spectrum of symptoms, which is applicable to the menopause.  

“These decisions could encourage employers not to accept someone has a disability too readily. However, employers still need to be cautious and obtain medical evidence which could include an occupational health report.“

She added that the increased awareness around menopause symptoms may lead this area of law to evolve.

A report by the Fawcett Society found that 44% of women said their menopause symptoms affected their ability to do their job and one in 10 had actually left their job due to their symptoms.

Loch said: “This is an area of law that is being continually being tested now as the media attention surrounding the menopause increases and there is a resulting increase in tribunal claims.  

“The government has been under some pressure to make the menopause a protected characteristic in its own right, to avoid the requirement for claimants being forced to bring their claims as sex, disability or age discrimination. However, this has been rejected to date.”