An Employment Tribunal (“ET”) has upheld claims of disability discrimination, failure to make reasonable adjustments and harassment brought by Detective Constable Kerry Moth against the Chief Constable of Devon and Cornwall Police (“the Force”). 

We explore the matter and the key takeaways for our clients, below.

Background to the case

DC Moth joined the Force in 2003. She was disabled by reason of visceral hyperalgesia (regional pain syndrome), depression and, later, fibromyalgia, and was overweight because of the medication needed to reduce her symptoms.

DC Moth’s attendance record became a concern for the Force in 2016 and since that time, she had been subject to both informal and formal attendance management processes to support her in her work and improve her attendance record. In February 2019, occupational health advised that DC Moth was fit to work in her current role, to make arrests and assist other officers. However, she was not fit to undertake job related fitness training in any form, and so consequently, she was unable to complete officer safety training. At a case conference in March 2019, it was clear that DC Moth’s line manager’s (DS Marvelly) focus was on improving DC Moth’s diet and fitness, and recorded that it was for DC Moth to ‘take responsibility’ for her own health and wellbeing. This was in contrast to the medical view that, due to her health issues, there was no prospect of DC Moth ever being well enough to get through a fitness test in her remaining 12 years of service.

Despite this, DS Marvelly decided to place DC Moth on an action plan in July 2019 that required DC Moth to take ‘personal responsibility’ to improve her general health and lose weight, to make progress towards taking the fitness test and the officer safety training, and, to meet the same attendance standards as non-disabled officers. In a formal meeting to discuss the action plan on 9 July 2019, DS Marvelly told DC Moth that he felt that she needed to take more responsibility over her personal health; in particular to look at her diet, which could be affecting her weight, which in turn could be preventing her from being able to undertake the fitness test. DC Moth pointed out that her medications had a side-effect of weight gain. In response, DS Marvelly told her, “Well you drink Coke and it is bad for you.” DC Moss replied: “Well you drink alcohol and that’s also bad for you.” To this, DS Marvelly replied: “Not every day and you drink gallons of the stuff.”

The ET’s Decision

The Tribunal found that the comments by DS Marvelly on 9 July 2019, and his decision to include reference to DC Moth’s weight in the action plan, amounted to harassment related to DC Moth’s disability. DS Marvelly’s comments ignored the advice he had received from occupational health; he had no basis upon which to continue to criticise and challenge DC Moth about her weight and her diet. In doing so, he was bound to, and did, humiliate her.

DS Marvelly also persisted with requiring DC Moth to work towards being fit enough to take the fitness test in the July 2019 action plan, despite being repeatedly told by occupational health that this was unachievable. The ET found that this amounted to unfavourable treatment of DC Moth for a reason relating to her disability that could not be objectively justified.

Finally, the ET also found that the Force had failed to make reasonable adjustments to attendance management targets to take into account DC Moth’s disability. Instead of repeatedly adopting the same target that applied to all, the Force should have instead decided on an individual attendance target, taking into account advice from occupational health, which made some allowances for DC Moth’s disability. This was especially so in the July 2019 action plan.

What to take away

Employers are entitled to take steps to manage attendance. However, the attendance management policy must not be blindly followed. Employers need to consider whether it is reasonable to make adjustments to the process, timescales, attendance standards, etc. in order to best support disabled workers to improve and maintain their attendance at work. In all cases, medical advice must be obtained and taken into account before any decisions are made. Managers must take care to follow the evidence/information available to them and not to allow any assumptions or their personal opinions to unduly influence their decisions.

How Capsticks can help

Capsticks has significant experience of supporting employers to prevent discrimination and harassment (by drafting equality and diversity policies, codes of conduct and delivering training to employees at all levels) and also to deal with any complaints that may arise (by conducting investigations, supporting decision makers and HR, and defending any employment tribunal claims).

For further information on how we might assist your organisation, please contact Paul McFarlane.