A recent case, in which a line manger made inappropriate comments during a return-to-work interview, has highlighted the importance of equal opportunities training and the need for clear and concise equality and diversity policies.
Inappropriate comments
PC Gardner, who had been absent from work for six weeks with stress and insomnia, attended a return-to-work interview with his line manager, Sergeant Bedford, prior to commencing work. At the end of a lengthy interview, Sergeant Bedford commented that PC Gardner had been absent from work because he “went a bit doolally f***ing tap” (army slang for “losing one’s mind”) and made a reference to “One Flew Over the Cuckoo’s Nest” (a film set in a mental institution) when talking about how his absence would be communicated to colleagues.
Having covertly recorded the interview, PC Gardner brought a claim against both Sergeant Bedford and the West Yorkshire Police in the employment tribunal for disability harassment. Under the Equality Act 2010, disability harassment is behaviour towards an individual with a disability that they find offensive, frightening, degrading, humiliating or in any way distressing.
Proceed with caution
Given that employers can be held liable for line managers’ discriminatory actions, return-to-work interviews following sickness absence are a high-risk area for employers. An employer will have a defence if it can prove it took reasonable steps to prevent a line manager making discriminatory comments. Regular equal opportunities training for line managers on how to behave in return-to-work interviews and a policy providing clear written guidelines will aid the employer’s defence.
Tribunal
After considering PC Gardner’s perception of the conduct, other circumstances of the case and whether or not it was reasonable for the conduct to have the effect that it had on PC Gardner, the tribunal found that Sergeant Bedford’s comments to PC Gardner during the return-to-work interview constituted disability harassment. The tribunal said that, although the comments were not made with the intention of causing offence, it was reasonable for PC Gardner to interpret the comments as being derogatory and negative about his illness.
The police force and Sergeant Bedford were found to be jointly liable for the harassment, with compensation for the injury towards feelings recommended to fall within the lower of the Vento bands, unless PC Gardner could prove with medical evidence that his injury to feelings award should be pushed into a higher band.
The case highlighted that Sergeant Bedford had not received any equal opportunities training since 2006, and that, although there was a policy on equality and diversity, it was flawed. The tribunal also criticised the lack of a “joined-up” approach to equality and that there was a lack of action after PC Gardner raised his grievance.
