REWARD
in contacting the claimant during an agreed period of recovery. The claimant was employed as a Contact Centre Agent for the respondent and on commencement of employment, informed the respondent she would require a hysterectomy at some point in the future. This was confirmed by an occupational health assessment, which found she had been suffering with endometriosis for around ten years and the surgery would be required. After separating from her partner, the claimant raised a flexible working request to manage childcare, which was initially declined by the respondent but later approved. Alongside this, in the first four months of her employment, the claimant had over nine days of absence, which triggered an attendance support meeting with her manager. The claimant then had a further sickness of around four weeks before subsequently taking time off to undergo a hysterectomy. Although the respondent was aware the claimant would require three to four weeks to recover, they contacted the claimant after two weeks to arrange another attendance support meeting. Prior to the meeting, an occupational health assessment stated the claimant was fit to attend meetings remotely post-surgery. The claimant’s partner informed the respondent the day prior to the meeting that she was unable to attend due to a post-surgery infection. The respondent replied by reminding the claimant that occupational health had cleared her for meetings. Eventually, the respondent agreed to postpone the meeting until another occupational health assessment was carried out. However, the meeting was eventually conducted in her absence after the claimant didn’t consent for the report to be shared with the respondent. Following this, the claimant resigned. The tribunal found that by calling, texting and sending letters, the respondent behaved in an “immoral” way by contacting the claimant before her recovery period was over. They concluded that as the surgery was related to her disability, each instance of contact by the respondent was deemed as “unwanted contact”. They also found that although it wasn’t the intention of the respondent, this “unwanted contact” left the claimant “humiliated”.
The claimant was awarded £7,094.91 including interest, for injury to feelings in relation to disability harassment. The tribunal did, however, reject the claim for failure to make reasonable adjustments for disability, as the reasons stated for the flexible working request weren’t linked to her disability. The claim for constructive dismissal was dismissed due to the claimant not having the required two years’ service needed, and on the basis the claim was raised prior to any dismissal or resignation. “The Employment Tribunal had to consider whether the respondent acted reasonably in contacting the claimant during an agreed period of recovery” Exposing unsanitary work conditions was protected disclosure In the case of Mr M Chiriac v Serco Ltd, the ET had to consider whether the claimant’s conduct was the reason for their dismissal. The claimant was a Mobile Operative for the respondent, responsible for moving bicycles used by members of the public between docking stations. They had made several complaints about health and safety issues. The issues included people urinating, defecating, taking drugs, smoking and vaping where the claimant worked, as well as the provision, or lack of, appropriate personal protective equipment, which the claimant said drained them physically and mentally. The claimant was told by one of the managers words to the effect of “You should not take fights you cannot handle” and not to “be their hero”. They were also told to be “careful how [they] chose [their] words”. Alongside this, the claimant faced several conduct investigations relating to their interactions with members of the public. A colleague complained about the claimant’s behaviour in challenging them on their punctuality and pace of work, resulting in
a final written warning and further conflict avoidance training. During a shift, the claimant called their team manager a few times with concerns surrounding confusion over how many bikes could be pushed at one time. Colleagues reported that the claimant was behaving more as a manager than a colleague, directing them in how to work and insisting only one bike be pushed at a time. The claimant was suspended for failing to follow reasonable management instructions, insubordination and bullying and harassment. In the investigation report, the investigator referenced a standard operating procedure of pushing one or two bikes at a time, but this wasn’t supported by any evidence. The claimant was dismissed following a disciplinary hearing for telling colleagues to only push one bike at the time. The outcome letter referred to the claimant’s comments on their colleague’s lateness and that these could be deemed as harassment. The claimant’s reference to safety was also highlighted, specifically how their challenges to the guidance received was beyond what is reasonable and obstructive. The claimant’s appeal was dismissed. The tribunal found the complaints raised by the claimant were protected disclosures. Following this, based on the comments by their manager, in the context of the claimant’s health and safety issues, the tribunal concluded that the claimant had also suffered a detriment. The tribunal further found that although there were some shortcomings in the claimant’s conduct, they were a result of “deep frustration” at the lack of change to working conditions. They determined that the main reason for dismissal were the protected disclosures the claimant made, which resulted in the respondent branding them as an “insubordinate troublemaker”. In relation to Polkey, there were legitimate concerns over the way the claimant interacted with the public. On that basis, the tribunal estimated that within six months, the claimant would have been involved in further altercations with the public in which they wouldn’t have followed their training (again) and this would inevitably have led to further disciplinary action. A 50% Polkey reduction to any compensatory award was therefore decided on. n
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| Professional in Payroll, Pensions and Reward |
Issue 109 | April 2025
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