Advice, Criticism – Or Harassment?
A recent Employment Tribunal judgement demonstrates how careful employers need to be when criticising an employee .
Kerry Moth was a detective Constable in the Devon and Cornwall police and suffered from illnesses including visceral hyperalgesia (regional pain syndrome), depression and, later, fibromyalgia. She was overweight because of the medication needed to lessen her symptoms.
The frequency of absences from work came under scrutiny by the force when her sickness record was examined by the Human Resources Dept. (HR).
In early 2019 Professor Harrison, for the force’s occupational health team, informed managers that Ms Moth was disabled under the terms of the Equality Act, but she was fit to work in her current role and fit to make arrests and assist other officers. She was not fit, however, to undergo officer safety training (self defence skills), work night shifts or use equipment such as batons or handcuffs. Prof Harrison stated that ill health retirement would only be addressed once all reasonable adjustments and deployment had been considered.
Post 2016 a succession of action plans involving her line managers, occupational health and HR were drawn up to support her in her work and to reduce absences. There followed discussions and fitness for various roles and time off patterns when she was unwell.
At a meeting in 2019 her manager told Ms Moth she should “take more responsibility” over her diet and that if colleagues saw she was making an effort to slim down they would have more respect for her. A year prior to this Ms Moth told her manager that she was fed up with people assuming her weight contributed to her condition, the hearing was told.
Her manager also criticised her for drinking Coca Cola excessively without proof saying she drank “gallons of the stuff”.
Making their judgement the tribunal stated: “We had little doubt that this was a humiliating experience for the claimant” adding that the manager should not have made the comments, partly because they issue around diet had already been discussed by occupational health and Ms Moth.
Ms Moth is now in line for compensation after a judge ruled she had been discriminated against. A remedy hearing will decide the level of compensation.
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