Comments about diet and disability discrimination

In Ms K Moth v The Chief Constable of Devon and Cornwall, an employment tribunal (ET) found that:

• The Chief Constable (CC) was in breach of s20(3) of the Equality Act 2010 by failing to make reasonable adjustments to attendance management targets, which should have taken into account the disability of the employee, Ms Moth.
• The CC was in breach of s15 of the Equality Act 2010, subjecting Ms Moth to unfavourable treatment, by placing action points relating to achieving job related fitness training and officer safety training in an action plan. The CC had been told by occupational health that these action points were unachievable, yet Ms Moth’s line manager proceeded with these actions.
• By making comments about Ms Moth’s weight and diet, which related to her disability, Ms Moth’s line manager had harassed her and was, therefore, in breach of s26 of the Equality Act 2010.

Background

Ms Moth joined the police force in December 2003. She is disabled with regional pain syndrome, anxiety and depression, together with trigeminal neuralgia and fibromyalgia. The employer accepted that they knew about her disabilities.

The records relating to Ms Moth’s attendance management go back to 2011, but the ET decided to focus on the events from November 2016, when an attendance management action plan was put in place.

Over this period, several action plans were put in place, which included:

• A phased return to work.
• Changes to her working pattern so she did not have to work night shifts.
• Adjustments to Ms Moth’s workstation.
• Referrals to occupational health.

In June 2018, DS Marvelly took over line management responsibilities for Ms Moth. In December of that year, DS Marvelly met with Ms Moth following a period of 18 days of sickness absence by Ms Moth. She had also had 85 days’ absence between February and May 2018. During that meeting, Ms Moth requested that she work from home when she was ill, as people with childcare responsibilities could. Her hours of work were also discussed, and she stated that she did not wish to reduce her hours.

There was a further referral to occupational health in January 2019, because DS Marvelly had concerns around Ms Moth’s fitness for the role, given she had been diagnosed with further health issues and he noted that she was out of breath by walking up two flights of stairs in the office. The occupational health report stated that Ms Moth was fit to work in her current role, but not fit to undergo the job related fitness test.

As Ms Moth had asked about the possibility of working from home, DS Marvelly made an enquiry to his line manager, DI Gray, regarding the protocol on laptops. DI Gray’s view was that, as Ms Moth was a detective constable, she could not fulfil her role working from home, given her main duties were to investigate crime and visit witnesses.

Attendance management continued and DS Marvelly drafted an action plan in July 2019, which included:

• Taking personal responsibility to demonstrate progress towards the job related fitness test.
• Taking responsibility to improve general health and weight.
• Improving level of attendance at work – the attendance target used was a Bradford score formula, which attaches a number of points to absences. The theory behind this is that a number of short-term absences is worse than one period of long-term absence.

On 9 July 2019, a formal first stage meeting took place. During this meeting, Ms Moth told DS Marvelly that her weight was not down to her diet, but due to the medication she had to take. However, DS Marvelly stated that he felt that her diet should be considered, because he had seen her drink lots of coca-cola during the day. DS Marvelly’s comments upset Ms Moth.

Conclusions

The ET concluded that:

• Ms Moth’s attendance targets should have been adjusted. This would have generated confidence demonstrating that there was an appreciation that her attendance pattern was unlikely to be the same as a non-disabled person.
• Occupational health had made it very clear that Ms Moth was not going to be able to undertake the fitness test, therefore it should not have been included in the action plan – it put unnecessary pressure on Ms Moth and was not rooted in rational justification.
• DS Marvelly’s comments around Ms Moth drinking coca-cola was a humiliating experience for Ms Moth. DS Marvelly had not acted upon information he had been given by occupational health. While DS Marvelly was not acting in bad faith, the ET felt that it was unprofessional of him to pursue this line of discussion.

Summary

The ET accepted that there were genuine issues about Ms Moth’s attendance, which needed to be addressed and that it was right to adopt performance procedures to bring that about. However, employers should be flexible about the application of attendance targets and consider agreeing any variation in attendance with occupational health. Managers should also ensure that discussions relating to attendance are based around information that they have, for example from occupational health.