Contact during recovery from surgery was harassment
- Disciplinary
Peninsula Team, Peninsula Team
(Last updated )
Peninsula Team, Peninsula Team
(Last updated )
In a recent case, Miss C Berry v Anglian Water Services Ltd, the claimant bought claims for disability harassment, failure to make reasonable adjustments for disability and constructive dismissal against the respondent.
The claimant was employed as a contact centre agent for the respondent and on commencement of employment, informed the respondent that she would require a hysterectomy at some point in the future. This was confirmed by an occupational health assessment that found she had been suffering with endometriosis for around 10 years and the surgery would be required.
After separating from her partner, the claimant raised a flexible working request in order to manage childcare, which was initially declined by the respondent but later approved. Alongside this, in the first four months of her employment, the claimant had over nine days of absence, which triggered an attendance support meeting with her manager. The claimant then had a further sickness of around four weeks before subsequently taking time off to undergo a hysterectomy.
Although the respondent was aware that the claimant would require three to four weeks to recover, they contacted the claimant after two weeks to arrange another attendance support meeting. Prior to the meeting an occupational health assessment stated that the claimant was fit to attend meetings remotely post-surgery. The claimant’s partner informed the respondent the day prior to the meeting that she was unable to attend due to a post-surgery infection. The respondent replied by reminding the claimant that occupational health had cleared her for meetings.
Eventually, the respondent agreed to postpone the meeting until another occupational health assessment was carried out, however the meeting was eventually conducted in her absence after the claimant did not consent for the report to be shared with the respondent. Following this, the claimant resigned.
The employment tribunal found that by calling, texting and sending letters, the respondent behaved in an ‘immoral’ way by contacting the claimant before her recovery period was over. They concluded that as the surgery was related to her disability, each instance of contact by the respondent was deemed as ‘unwanted contact’. They also found that whilst it wasn’t the intention of the respondent, this ‘unwanted contact’ left the claimant ‘humiliated’.
The claimant was awarded £7,094.91 including interest for injury to feelings in relation to disability harassment.
The employment tribunal did however reject the claim for failure to make reasonable adjustments for disability as the reasons stated for the flexible working request were not linked to her disability. The claim for constructive dismissal was dismissed due to the claimant not having the required 2 years’ service needed, and on the basis the claim was raised prior to any dismissal or resignation.
In this case, it reminds employers to ensure that any contact with an absent employee is fair and reasonable, considering any underlying reasons for the absence. In this instance, as the respondent was already aware of the recovery time frame, the tribunal found that it was reasonable for the claimant to be left to recover uncontacted.
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Peninsula Team, Peninsula Team
(Last updated )
Peninsula Team, Peninsula Team
(Last updated )
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