A water firm has been found guilty of harassment for harassing an employee who repeatedly asked him to return to work following surgery.
Miss Berry was a contact center agent for Anglian Water. She told the company that when she was offered a job in April of 2022 she would require a hysterectomy.
She started working in May 2022 on a flexible agreement that meant she would work 37 hours per week. In June 2022, she expressed concerns to her manager about her work hours and submitted a request for flexible working.
She asked for a reduction in her weekly working hours to 30 and a more stable pattern, with a weekend shift every month. Berry explained to her employer that she needed some “me-time” due to menopause symptoms.
In her request, she also stated that menopausal fog was a factor in her struggle to maintain mental clarity. However, she did not specify that her request was for reasonable adjustments under Equality Act.
Berry was absent for a “gynecological reason” in the following month. When she returned, she attended an interview to return to work where she explained she had missed taking her injection.
Anglian Water commissioned a occupational health assessment. She was also invited to attend a meeting on flexible working requests to discuss her proposal. The assessment concluded that she had been suffering from endometriosis, which was the reason for her waiting to have a hysterectomy for 10 years.
The assessment suggested she reduce her fatigue and mental fog and could take “additional welfare benefits” until surgery.
In July, the request for flexible working was almost entirely granted. She requested that she work one hour more between 10pm-11pm.
Berry replied to the request by stating that due to a change of personal circumstances (she just separated from her partner), she was only available during the week between 8am-5pm. She appealed against the decision.
She revealed that she was depressed and taking medication after a few more periods of absence. Her manager tried to contact her to discuss the long-term absence and invited her to several meetings to discuss returning to work.
Berry’s relationship broke down in early November 2022 and she never worked for Anglian Water again afterward. Berry claimed that she couldn’t attend meetings physically because she was unable to drive, and this “would risk my fragile mental health even further”.
She began early conciliation proceedings later that month with Acas. Her hysterectomy had been scheduled for 22nd December. Her recovery was estimated to take between three and four weeks by occupational health.
In January 2023, Anglian Water invited Berry to a “attendance support” meeting to discuss her potential return to the workplace and any adjustments she may need.
She told her manager, after being pushed for a reply, that she was suffering from a post-surgery illness and “very ill”. Many of the responses wished her a good day but encouraged her to contact them as soon as possible.
In Berry’s absence, the attendance support meeting was held in February. Anglian Water sent Berry a letter stating that it “could not sustain her non-attendance at work indefinitely” and that she would be subject to a probationary evaluation. A week later, she resigned.
Dr Peter McTigue said that while the majority of Berry’s company’s contacts with her were “polite” and “appropriate”, they should have allowed her more time to recuperate from her surgery.
He said that her manager was aware of the surgery she had undergone since she flagged it as soon as she started working at her company and that occupational health had noted possible recovery times once her surgery finally occurred.
The judgement stated that “the consequence of this is that contact with claimant should have avoided until after the 13th January 2023 to allow claimant to recuperate from her surgery.”
The tribunal found that the three points of contact were “unwanted conduct”, which was related to her disability. Her claim for harassment was successful. The tribunal dismissed a second claim for discriminatory constructive dismissal. To determine compensation, a remedy hearing will be scheduled.
Anglian Water told the BBC in a press release: “We are delighted that the panel and judge found no failure in our people management processes.”
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