Suspected endometriosis: is it a disability?

The Employment Tribunal (ET) in the case of Thornley v Acute Barbers has recently considered whether a case of suspected endometriosis is sufficient to amount to a disability and whether an employee’s resulting ‘poor attendance’ justified dismissal.

Background

Christian and Kyle Donnelly are brothers who trade as Acute Barbers (the Respondent). The Respondent employed Thornley (the Claimant) as an assistant barber. Mr C Donnelly told the ET that the Claimant had a pattern of routinely calling in sick on Mondays. There were no records kept as evidence of this pattern of absence, as a result of which the ET relied on the Claimant’s medical records and a WhatsApp exchange on 1 November 2021 when matters came to a head.

On the weekend before her employment ended (1 November 2021), the Claimant organised a house party which Mr C Donnelly was aware of and told her on the Friday “do not let me down on Monday” which was a clear reference to previous absences. On Monday 1 November 2021, unfortunately, the Claimant sent a WhatsApp message to Mr C Donnelly to inform him that she would not be attending work due to sickness. Mr C Donnelly, on behalf of the Respondent, dismissed the Claimant stating: “I’m letting you go… I could do with the extra income to be honest anyway…”.

The Claimant brought two claims. The first claim was for discrimination arising out of disability, based on her stated physical impairment of menorrhagia (heavy period), a symptom of endometriosis which she was suspected to suffer from. The second was a claim for unfair dismissal.

The Law

Section 6 of the Equality Act 2010 (EqA 2010) provides that:

“A person (P) has a disability if:

1. P has a physical or mental impairment, and
2. The impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

The burden of proof is on a claimant to show that they have a disability at the material time, which is the time of the alleged discriminatory act.

In addition, for an employer to fairly dismiss an employee they must establish a potentially fair reason for dismissal under section 98(1) Employment Rights Act 1996 (ERA) and whether a dismissal is fair or unfair depends on whether the organisation acted reasonably or unreasonably in deciding to dismiss the employee for that reason (section 98(4) ERA).

Decision

The ET upheld the Claimant’s claim of unfair dismissal noting that: “Mr Donnelly did not act reasonably in all the circumstances in treating her poor attendance as a sufficient reason to dismiss”. The ET noted that she never received formal warnings about her attendance and, importantly, she was not invited to a meeting to discuss her ‘poor attendance’.

The ET then considered the evidence provided by the Claimant to show that she had a disability at the time she was dismissed. The ET found that the medical records did not show sufficient proof of endometriosis. The ET was of the view that only having a referral to a gynecologist was not sufficient to show that the Claimant suffered from endometriosis at the time of dismissal, it concluded she suffered instead with a ‘heavy period’. The ET therefore dismissed the Claimant’s claim for discrimination arising out of disability under section 15 of the EqA 2010. It was also noted that the Claimant did not tell the Respondents that she considered herself to have a disability.

Comments

There are two important takeaway points from this case. Firstly, without formal diagnosis and sufficient evidence to meet the criteria under EqA 2010, endometriosis is unlikely to amount to a disability to successfully pursue a claim of disability discrimination. The second important point for employers is to always ensure that they follow a fair disciplinary procedure. If the Respondent had followed a disciplinary procedure before dismissal, in this specific case, the employer may have had a better defence in dismissing the employee. Additionally, the ET in this case was not happy with the lack of records of formal or informal warnings, or discussions around the concerns that led to the dismissal. Therefore, employers should ensure that concerns are raised at the relevant time, that they keep a record of discussions and, if necessary, a fair disciplinary procedure is followed before any dismissal is contemplated.