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31 January 2025
Case Study
In the case of Crette Berry v Anglian Water Services Limited, the well-meaning employer was found to have overstepped the boundary and had unlawfully harassed the employee they were trying to support.
All employers will know that there is a balancing act to be struck when staff are off sick- you need to maintain enough contact (by the right method) to understand the position and provide support. Conversely, you need to ensure that you are not impeding the member of staff’s recovery and recuperation.
Miss Crette Berry was employed by Anglian Water Services Limited as a call centre agent. Shortly after commencing employment, she requested a different working pattern due to the effects of longstanding endometriosis and the impact of menopausal symptoms.
She had some short-term absences and an Occupational Health Report was duly obtained. Her working pattern was changed but her absences continued and became long-term. She then underwent surgery for a hysterectomy and made it clear to her employer that this would require a four-week recovery period.
Within two weeks of the surgery (and therefore within the four-week recovery period) she was contacted by her line manager on multiple occasions by the method of Whatsapp messaging. The purpose of the messages was to require her attendance at a meeting and that meeting took place in her absence. She resigned and brought claims for (a) failure to make reasonable adjustments and (b) harassment related to disability.
Case Study
The Tribunal found that Miss Crette Berry was disabled within the meaning of the Equality Act due to her endometriosis, her menopausal symptoms and her depression.
The claim for failure to make reasonable adjustments did not succeed, but the Tribunal upheld the complaint of harassment for the period following her surgery.
Harassment occurs when an employee is subjected to unwanted conduct that is relevant to a protected characteristic (here, disability) and that conduct has the purpose or effect of violating their dignity or creating an intimidatory, hostile, degrading, humiliating or otherwise offensive environment for them.
The Tribunal found that the employer knew of her surgery and the required recovery period and should therefore not have contacted her during this time (i.e. during the four-week recovery period). Instead, she should have been allowed to recover from surgery without being disturbed.
It found that the initial letter and three subsequent follow-ups via WhatsApp were indeed unwanted conduct related to her disability. The fact that the line manager had not intended to cause humiliation or offence was of course not relevant- it was the effect of that conduct on Miss Crette Berry that mattered.
Dealing with staff off sick is a complicated business. Often your internal policies and procedures will help you to effectively manage the situation, but care needs to be taken not to adhere to these so rigidly that you end up acting unlawfully. Any triggers or timelines should be viewed with common sense and varied according to the specific facts of the situation. In this case, too much weight was placed on the need for meetings and within certain timeframes- and not enough on the employee’s well-being and need for recovery.
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