Case Study: Negotiating an increase to a Settlement Agreement due to Menopause Discrimination

How Fiona Martin, expert Employment Law Solicitor based in our Brighton office, successfully negotiated an increased settlement package for her client because of her adverse menopausal symptoms. These were serious enough to be considered a disability under the Equality Act.

The situation

Hilary had been working in an admin role for a travel agency for just over two years. Hilary believed she had been discriminated against on the grounds of her adverse perimenopausal symptoms. This included her anxiety, which met the definition of a disability under the Equality Act 2010 in that it was likely to last more than a year and had a substantially adverse effect on her day to day activities.

Her employer referred Hilary to Occupational Health and her report recommended reasonable adjustments at her workplace which her employer failed to implement.

A month later, Hilary was invited to attend an ‘off the record’ meeting. She was not given time to prepare for this meeting or bring a companion with her. Hilary’s employer explained that they wanted to bring her employment to an end because her poor mental health had had an impact on her team and the business could not risk her becoming unwell again. Her employer said if she did not  agree to negotiate her exit from the company, they would discipline her under their absence policy “which would be unpleasant for both parties”.

This came as quite a shock to Hilary and exacerbated her anxiety and other health symptoms.

The day after this meeting, her employer offered Hilary £27,500 to terminate her employment. This comprised of £9,842 as tax free compensation for termination of employment, £14,438 payment in lieu of notice, £3,220 accrued but untaken annual leave and £500 plus VAT as a contribution towards legal fees. Her employer pressured her to accept this offer within 48 hours.

Feeling sick with worry and concerned as to whether she had a strong case, Hilary took a friend’s recommendation and contacted our Employment Solicitors in Brighton for advice.

What Martin Searle Solicitors did

Our team specialise in Settlement Agreements, and we advised Hilary that in line with ACAS guidelines on reasonableness, employers should give employees 10 calendar days to consider a Settlement Agreement offer. We advised that if her employer put undue pressure on her to accept the Agreement within 48 hours, we could show evidence of this to the Employment Tribunal Judge as further examples of unfair behaviour so her employer could not rely on this being a “protected conversation”.

Hilary had been taking Hormone Replacement Therapy (HRT) to control her adverse premenopausal symptoms. We explained that when assessing whether an individual is disabled under the Equality Act 2010, her symptoms are assessed on how they would be with no HRT. We advised that Hilary’s anxiety and perimenopause symptoms were likely to amount to a disability and her employer was under a duty to make reasonable adjustments for her in relation to her sickness absences.

We advised Hilary to raise a grievance about this discriminatory treatment, the undue pressure her employer was putting on her to accept the Agreement and the lack of support and reasonable adjustments. We also advised her to make a simultaneous Subject Access Request.

After receiving Hilary’s grievance and Subject Access Request, the employer asked to meet with her to discuss reasonable adjustments. We advised Hilary to respond saying that trust and confidence had broken down due to the way she had been treated and that she wanted to negotiate her exit from the company. Hilary also requested that her grievance should be heard by someone more senior as her grievance raised complaints about members of the HR team and senior managers within the company.

The result

Fiona embarked on three weeks of negotiations with Hilary’s employer and we managed to secure a total compensation package of £39,309. This comprised of £21,144 tax free compensation for the termination of employment, £3,665 accrued but untaken annual leave, £14,500 post-employment notice pay and £500 plus VAT contribution towards legal fees. This equated to an increase of £11,302 in tax free compensation for the termination of employment. Her employer also provided an agreed reference.

If you are experiencing less favourable treatment as you are going through the menopause please get in touch with our expert Employment Law team on 01273 609911, or email info@ms-solicitors.co.uk.