Thu 24 Jun 2021

Employment Tribunal Discrimination Round-up June 2021

Telling employee with breast cancer she was lucky to get ‘free boob job’ was harassment

A recruitment worker with breast cancer was successful in her claim at an Employment Tribunal ("ET") for harassment against her employer, Textbook Teachers Limited. Having discovered a lump in her breast, the Claimant was subsequently diagnosed with breast cancer which required surgery. Following the diagnosis, the Claimant and the managing director, Sharon Paul, agreed time off for the Claimant for two weeks after her operation in June 2018. However, a colleague overheard the Claimant telling a client that she would not return until September 2018. The Claimant was then approached and asked to provide paperwork relating to the 12 weeks' absence. There were then a series of conversations between the Claimant and Paul and during these conversations it was alleged that Paul made the following comments regarding the Claimant's circumstances: “it's not like you’re going to die”, “what do you need that amount of time off for?”, “It's only early stages of cancer” and that it was “no big deal” that the Claimant would be forced into menopause at the age of 37 and no longer able to conceive children. Paul also was alleged to have said that the Claimant was “lucky to have a free boob job off the NHS”, asking the Claimant if she was happy with her “new breast size” and if she was going to have another “free boob job” so the other matched. The Claimant brought claims of direct disability discrimination, a failure to make reasonable adjustments and harassment related to disability. The claims for direct disability discrimination and failure to make reasonable adjustments failed. However, the ET found in favour of the Claimant in relation to the harassment claim, finding that while Paul did not intend to be offensive, she showed a “lack of insight, sensitivity and empathy”, which had the effect of violating the Claimant's dignity and “creating an offensive environment”.

Gym trainer who refused to handle dirty towels was discriminated against

Ms A Burton v Nuffield Health: 2300147/2019

In this case the ET found in favour of a gym trainer with generalised anxiety disorder (GAD) and a phobia of coming into contact with bodily fluids in her claim of disability discrimination against her employer, Nuffield Health,. The ET heard that the Claimant disclosed her mental health condition at the outset: to the fitness manager, John Thornley, at the interview stage and subsequently to the Nuffield’s in-house occupational health ("OH") team during her induction. The OH team deemed the Claimant fit to undertake the job with agreed modifications including (1) her being exempt from carrying out hygiene-related tasks as they could be a trigger to her condition and (2) being exempt from undertaking blood testing as part of MOT health screening. It was also recommended that she reduce her shift hours from 32 to 24 hours and that the shifts be consecutive, to ensure she could have ample time off between work in order to manage her condition. In the same month of starting employment, a senior general manager, Mr Foord, who had not been made aware of the Claimant's condition, asked her to collect sweat towels from the gym floor. Upon explaining to him that she couldn't pick them up because of her mental health, he replied “we all have to do things that are unpleasant” and suggested that she use gloves to pick them up. She still was unable to pick up the towels. The ET heard that Foord then proceeded to pressure the Claimant into explaining her mental health condition in the public facing area which made the Claimant feel "embarrassed" before picking the towels up himself and telling her “You can do it like this – it’s good for the deltoids.” The Claimant stated that Foord then said they would have to talk more about her condition as it could “affect you working here”.

The Claimant was then on sabbatical during that summer which was pre-arranged at the time of her recruitment. During the Claimant's absence, her line manager, Thornley, was replaced by Sarah Norman as covering fitness manager. In anticipation of the Claimant's return to work, Norman corresponded with the Claimant and queried her working hours to which the Claimant explained she had to undertake limited hours on advice from occupational health. Norman responded setting out her rota without taking account of the reduced hours and asked the Claimant to “please explain why this seems unfair”. The Claimant was also prompted to discuss her mental health condition so that Norman could “better understand”. At a meeting with Norman to discuss her condition, Norman asked the Claimant why she would work in a gym given her mental health condition and inability to be around bodily fluids, while allegedly likening it to her “having a milk phobia and working in Costa”. The Claimant also claimed Norman remarked that she managed a member of staff at another venue who used a wheelchair, but did not require “any special treatment”.   The Claimant then raised a grievance, which was not upheld, before bringing a claim to the Tribunal. Her claims of direct discrimination, discrimination arising from disability, failure to make reasonable adjustments and harassment succeeded in part. However, the claim of victimisation did not succeed. The Tribunal highlighted that there was a limited understanding of her condition by the Respondent and that its failure to have trained its managers to deal with it effectively was "surprising in an organisation whose purpose is to promote health and wellbeing".

Both cases serve as a reminder to employers to ensure that managers as well as the general workforce have had proper, relevant and regular training in areas of diversity, bullying and anti-harassment to raise awareness, promote mutual respect for each other and protect staff from being subjected to unlawful treatment in the workplace.

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