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The recent case of Berry v Anglian Water Services Ltd offers significant insights into the delicate balance between maintaining contact with absent employees and avoiding harassment under the Equality Act 2010. While this Employment Tribunal (ET) case is not binding authority, it provides valuable guidance for employers on navigating sensitive situations involving disability and workplace procedures.
Summary of the Case
The Claimant, employed as a Contact Centre Agent, suffered from endometriosis and associated mental health conditions. Following a hysterectomy, the Claimant required recovery time, which the employer acknowledged. However, two weeks post-surgery, the employer contacted the Claimant multiple times, via calls, texts, and letters to arrange meetings and discuss occupational health assessments. This contact, deemed excessive during the recovery period, was found to amount to harassment related to disability under the Equality Act.
The ET ruled that while the employer had not failed to make reasonable adjustments in most areas, contacting the employee during the recovery period created a humiliating and discriminatory environment. The Claimant was awarded £7,094.91 for injury to feelings.
Key Takeaways for Employers
1. Reasonable Contact is Essential but Context Matters
The ET confirmed that maintaining reasonable contact with absent employees is necessary to support their return to work. This includes scheduling meetings, discussing adjustments, and adhering to attendance support policies.
However, contacting an employee during a sensitive recovery period, particularly against medical advice, can cross into harassment.
2. Follow Medical Guidance on Recovery
Employers should carefully consider medical advice regarding an employee's recovery timeline before initiating actions, such as scheduling meetings or requesting further assessments. Acting too soon can undermine an otherwise fair and professional process.
3. Maintain Professional Conduct Throughout
The employer in this case followed appropriate internal procedures up to a point. This professionalism safeguarded them from broader claims of failing to make reasonable adjustments. However, the decision to escalate contact shortly after surgery tarnished their overall approach.
4. Policies must be Applied with Flexibility
Rigid adherence to internal policies without considering the specific needs of a disabled employee risks creating unintended disadvantages. Employers should assess whether procedural steps genuinely support the employee or inadvertently cause harm.
5. Training and Awareness
This case underscores the importance of training Managers on disability-related matters under the Equality Act, particularly around sensitive periods like recovery from medical treatment.
Conclusion
The Berry case is a reminder that even well-intentioned actions can result in claims of harassment if not handled thoughtfully.
Employers should strike a balance between adhering to policies and accommodating individual circumstances, especially in cases involving disability. By prioritising empathy, medical advice and open communication, businesses can avoid pitfalls while fostering a supportive work environment.
The guidance provided in this article is just that - guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice