Ms A McMahon v Rothwell & Evans LLP and 1 other — 2021

The claimant was dismissed on 10 May 2019 after a period of increasing concern about attendance, short-notice absence and reliability. The tribunal found that the respondent had tolerated absences in 2018 when the claimant's work was more flexible, but that matters changed in 2019 when she began working as Mr Fitzhugh's assistant and her presence in the office became critical to keeping conveyancing work moving.

The tribunal found that the claimant was disabled within the meaning of the Equality Act 2010 on a cumulative basis, accepting that her menopausal and related symptoms had lasted long enough and, taken together, had more than a minor or trivial effect. It nevertheless held that the respondent did not have actual or constructive knowledge that she had a disability at the material time, because the claimant usually described her absences as flu, stomach problems or childcare issues, the sick notes went only to payroll, and her references to menopause did not alert the employer to a substantial and long-term adverse effect.

The direct disability discrimination claim failed because the tribunal found the reason for dismissal was the claimant's unreliability in her changed role, not disability. The section 15 claim also failed: even where the tribunal accepted that some absences or symptoms may have arisen in consequence of disability, it held that dismissal was a proportionate response to the legitimate aim of maintaining reliable attendance in a small business and in a role that needed consistent cover.

The reasonable adjustments claim failed because the claimant did not establish that the attendance requirement put her at a substantial disadvantage because of disability, and the tribunal found the respondent could not reasonably have been expected to know that it did. The sex discrimination claim failed because the tribunal accepted that a hypothetical male comparator with the same childcare-related absence and attendance issues would have been treated in the same way. No monetary award was made because all claims were dismissed.