Background
In the case of Crette Berry v Anglian Water Services Ltd, the claimant was employed as a Contact Centre Agent. She was a disabled person by virtue of suffering from endometriosis and menopause, anxiety and depression. After resigning from the role in March 2023, the claimant brought a claim for discrimination on two grounds; failure to make reasonable adjustments and harassment related to disability.
Judgement
The employment tribunal dismissed all parts of the claim relating to the failure to make reasonable adjustments, finding that most of the complaints are not well founded. The claim for harassment was also unsuccessful in so far as it related to the respondent's conduct at attendance support meeting, and the dismissal of a grievance brought by the claimant.
However, the employment tribunal upheld a harassment claim arising from the respondent's contact with the claimant following a hysterectomy she underwent on 16 December 2022. The respondent knew the claimant needed a three to four week recovery following the surgery, and should not therefore have contacted her until after 13 January 2023. However, the respondent wanted to invite the claimant to an attendance support meeting to arrange a return to work and any reasonable adjustments required. The claimant's manager contacted her by letter inviting her to a meeting on 13 January 2023. The claimant did not respond to this letter and her manager sent a series of text messages on 5, 10 and 12 January to check up on the claimant and re-arrange the meeting for a suitable date, despite having been advised that the claimant was very poorly.
Although the tribunal noted that "the overwhelming majority of contact from the respondent and its employees was polite and appropriate", it concluded the contact on 5, 10 and 12 January 2023 was unwanted conduct relating to the claimant's disability. Contact between the respondent and the claimant should have been avoided until after 13 January 2024. Although the manager did not intend to humiliate the claimant, the contact did have that effect on her, and it was reasonable for the conduct to have that effect.
Award
The matter has now been listed for a remedy hearing to determine the compensation award. Given the claimant had effectively decided to resign prior to the incident of harassment taking place any wage loss suffered will be limited, however an award for injury to feelings is likely to be made.
What can employers take from this?
Dealing with the impact of disabilities and long-term sickness absence can be complicated for a business. This case demonstrates that even where the intention of the employer is to ultimately support the employee, the manner in which this support is delivered should be carefully considered and reasonable time frames should be followed taking into consideration the employee's privacy and wellbeing.
This article was written by Aleksandra Werecka, a trainee solicitor in the Employment Team.
