Ms E Banton, counsel v Respondent — 2023

The claimant worked for the respondent from 4 January 2016 until her resignation took effect on 28 February 2020. The tribunal had already found that she was disabled by perimenopausal and menopausal symptoms, and it accepted that she experienced symptoms such as brain fog, reduced concentration and stress. It also found that the claimant had longstanding performance issues, including timekeeping, prioritisation, organisation and communication, and that she was given feedback and support, including a compressed-hours working pattern from January 2019.

In May 2019 Andrew Richman began an informal performance process and in September 2019 he moved to a formal process. The tribunal found that those steps were justified by genuine performance concerns, were not a misuse of the review system and did not breach the implied term of trust and confidence. It found no attempt to force the claimant to resign, and it held that the grievance raised in October 2019 and the later appeal were investigated thoroughly and within a reasonable time.

On the section 15 claim, the tribunal accepted that the informal and formal performance management could amount to unfavourable treatment, but it found that the respondent did not know, and could not reasonably have been expected to know, that the claimant's menopause symptoms were affecting her performance until she raised the grievance in October 2019. It held that comments about brain fog and the occasional reference to menopause were not enough to put the respondent on notice, and in any event the performance management pursued legitimate aims and was a proportionate means of achieving them.

The reasonable adjustments claim failed because the tribunal found that most of the PCPs alleged were not applied as claimed. It found that the grievance process was put on hold while the claimant was off sick, that she was not required to progress it until she felt able to do so, that she was given flexible objectives and meaningful work on her return, and that her IT access had been disabled under a general absence policy and was reactivated when she returned. It also found that the request to record the grievance meeting was made so the recording could be shared with the union, not because of a need arising from the claimant's symptoms, so no substantial disadvantage was proved on that PCP.

The harassment claims related to disability, age and sex all failed. The tribunal found that the complaints about feedback, performance reviews, seating changes, communications while on sick leave, presentation feedback and return-to-work arrangements were either not proved or were management actions, and it did not find that they were related to a protected characteristic or had the required effect under section 26. The victimisation claim also failed: although the grievance was a protected act, the tribunal found that the alleged detriments were not proved or were explained by ordinary grievance, absence-management, IT-security and data-protection processes, and no causal link was shown. No monetary award was made.