Equality Act 2010
Section 26 (harassment):
(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the … effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 166. Subsection (5) names disability among the relevant protected characteristics.
Section 13(1) (discrimination):
(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats, or would treat, others.
Section 27(1) ( victimisation):
A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act; or (b) A believes that B has done, or may do, a protected act.
The claimant was a police officer on Merseyside. Due to childcare issues, the desire to have a healthy work/life balance and the need to care for his disabled mother, following the death of his father, he requested a number of changes to his shift pattern, eventually agreeing working 9–5 in a specialist team that ordinarily involved working during anti-social hours.
A ‘friend’ of the respondent became aware of these shift pattern changes and began to call the claimant ‘Dolly Parton’ due to his 9–5 work. A picture of Dolly Parton was also printed out and left on the claimant’s desk. However, this was not raised as an issue at the time, and the claimant only raised this as a concern nearly 12 months later.
On moving to a new station, the claimant clashed with senior officers over his hours and eventually went onto sick leave due to depression, anxiety and PTSD. During his time off, he was sent an email regarding his return to work that was intimidating and threatened disciplinary action should he not return as planned. He was also forced to sign a return to work plan without any explanation as to why. This left the claimant feeling severely distressed and fearful for his future with the force.
The claimant subsequently raised a subject access request, which the employer did nothing with between January and May 2018 and therefore the response fell outside of the 40-day statutory deadline for compliance. The documentation was not searched for, and the request was not escalated to an appropriate person. Dismissive emails were also sent in relation to this matter.
EMPLOYMENT TRIBUNAL (ET)
The ET did not uphold this claim in its entirety, as some elements of the claim were either out of time or were found not to be discriminatory. Most notably, the ‘Dolly Parton’ comments (that were alleged to be sex discrimination, on the basis they were linked to the claimant’s sex) due to the delay in raising an internal grievance and then claim regarding this matter.
However, the claimant was successful in his harassment and victimisation claims. With regard to harassment, the ET unanimously held that in sending an email that was deemed to be intimidating, the conduct of the respondent’s Sergeant was unwanted and related to the claimant’s disability. By also forcing the claimant to sign a return-to-work plan, the behaviour created an intimidating atmosphere that left the claimant fearful for his job. This was based on the ET’s perception of what a reasonable observer would have been aware of, including the claimant's poor mental health.
With regard to victimisation, this was upheld. It was found that in their actions in dealing with the subject access request, the respondent caused the claimant to suffer a detriment, which was held to be as a result of the claimant's protected act.
Note for employers
This case highlights the need for employers to deal with matters in a timely fashion, as failure to do so can cause the employee to suffer a detriment, as seen here.
Employers should also take note of the need to be mindful of the reasons for the employees’ absence and to adapt their usual processes accordingly. By not taking the time to explain what was happening and referring to disciplinary action in communication with the claimant, the actions of the respondent were discriminatory resulting in harassment. The failure to take into account the impact that the claimant’s poor mental health was having on him, and sending communications as they did, created an environment that was intimidating for the claimant, which should have been obvious to the reasonable bystander.