Employment Law Case Update: Harassment and Discrimination

Choosing your words carefully is important when you're managing employees and today our Employment Law team review the case of Ms K Moth v The Chief Constable of Devon and Cornwall 2021 in which the Employment Tribunal (ET) had to consider whether a woman who was subjected to comments about her diet and weight was the victim of harassment.

Ms Moth worked for her employer from December 2003 as a detective constable. She suffered from regional pain syndrome, anxiety, depression, trigeminal neuralgia and fibromyalgia, and these illnesses caused her to frequently miss work.

The employer used the Bradford Scoring system to measure absences. When a certain score was reached, an email would be automatically sent to the employee’s line manager flagging their attendance. Ms Moth’s line manager, DS Marvelly, received an email flagging Ms Moth’s attendance record in December 2018.

In February 2019, DS Marvelly and Ms Moth met with Occupational Health. The OH consultant stated that Ms Moth was disabled within the meaning of the Equality Act and confirmed that she was “not fit to undergo the job related fitness test and therefore could not undergo officer safety training,” but she was fit to carry out other duties.

DS Marvelly was clearly concerned that Ms Moth was not officer safety trained and was unable to complete a fitness test. At a case conference meeting, he asked OH if Ms Moth “would benefit from any health and nutrition wellness advice”. Ms Moth made it clear she did not wish to discuss this and they decided to leave that discussion for another time.

A couple of months later, Ms Moth’s attendance had not sufficiently improved and DS Marvelly decided to proceed with the first formal stage of the unsatisfactory performance procedure. As part of the procedure, DS Marvelly drew up an attendance management action plan which included as action points that Ms Moth “demonstrate progress towards the job related fitness test and officer safety training” and take “personal responsibility” to “improve [her] general health and weight.”

At the first formal stage meeting, DS Marvelly told Ms Moth she should take more responsibility over her diet and how it could be affecting her weight and ability to take the fitness test. Ms Moth responded that her weight was due to medication she took to manage her other health conditions. DS Marvelly did not dispute that her medication affected her weight, but also believed her diet should be considered and referenced the fact that she drank “lots of Coca-Cola during the day”. This upset Ms Moth who responded that DS Marvelly drank alcohol which is also bad for you. DS Marvelly responded that he didn’t drink alcohol every day and that Ms Moth “drank gallons of Coca-Cola”.

It was after this meeting Ms Moth decided to bring claim against her employer for failure to make reasonable adjustments, discrimination, and harassment.

The ET found that the employer had discriminated against Ms Moth by including as an action point that she make progress towards the fitness test and safety training. Occupational Health had been “crystal clear” that the fitness test was not achievable due to Ms Moth’s health conditions and that this was not going to change for the remainder of her employment. The employer was therefore not justified in including that point in her action plan and in doing so subjected her to “unnecessary pressure”.

Ms Moth also succeeded in her claim of harassment for DS Marvelly’s comments about her weight and diet at her first formal action meeting. The ET had “little doubt” the meeting was a “humiliating experience” for Ms Moth. DS Marvelly had been told about Ms Moth’s health conditions and had no reason to keep pressing her about her diet.

A remedy hearing would be scheduled for a later date.

This case reminds employers to keep a professional tone and treat employees who have disabilities with respect and sensitivity. If the employee has been assessed by Occupational Health or another medical professional, the subsequent advice should be taken seriously and should inform any reasonable adjustments moving forward. Employers should be careful that they do not overlook the advice offered by health professionals in favour of their own assumptions about the employee’s illness and abilities. 

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.