Case Law Update: Harassment & Working Hours

By Andrew Willis
08 Jun 2022
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An employment tribunal has found that a police officer was the victim of harassment and victimisation, related to his disability, following a number of issues which included (but was out of time to be considered by the ET) being called ‘Dolly Parton’ for his 9 – 5 working pattern.

Knox v Chief Constable of Merseyside Police

Employment law related to the case

Equality Act 2010

Section 26 (harassment):

(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the … effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. 166. Subsection (5) names disability among the relevant protected characteristics.

Section 13(1) (discrimination):

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats, or would treat, others.

Section 27(1) ( victimisation):

A person (A) victimises another person (B) if A subjects B to a detriment because – (a) B does a protected act; or (b) A believes that B has done, or may do, a protected act.

Facts of the case

The claimant was a police officer on Merseyside. Following the death of his father, he requested a number of changes to his shift pattern. He agreed with his employer to work 9 – 5 in a team which normally worked during anti-social hours. He wanted this working pattern for several reasons, including:

  1. Childcare issues,
  2. The desire to have a healthy work/life balance
  3. The need to care for his disabled mother

A ‘friend’ of the respondent became aware of these shift pattern changes. They began to call the claimant ‘Dolly Parton’ due to his 9 – 5 work. A picture of Dolly Parton was also printed out and left on the claimant’s desk. However, this was not raised as an issue at the time. The claimant only raised this as a concern nearly 12 months later.

On moving to a new station, the claimant clashed with senior officers over his hours. He eventually went onto sick leave due to depression, anxiety and PTSD. During his time off, he was sent an email regarding his return to work that was intimidating. It threatened disciplinary action should he not return as planned. He was also forced to sign a return to work plan without any explanation as to why. This left the claimant feeling severely distressed, and fearful for his future with the force.

The claimant subsequently raised a subject access request. The employer did nothing with the request between January and May 2018 and therefore the response fell outside of the 40 day statutory deadline for compliance. The documentation was not searched for, and the request was not escalated to an appropriate person. Dismissive emails were also sent in relation to this matter.

What the Employment Tribunal (ET) found

The ET did not uphold this claim in its entirety, as some elements of the claim were either out of time or were found not to be discriminatory. The most notable example of this was the ‘Dolly Parton’ comments. They were alleged to be sex discrimination, as they were made on the basis of the claimants sex. However, due to the delay in raising an internal grievance, they weren’t considered by the ET.

The claimant was successful in his harassment and victimisation claims. With regard to harassment, the ET unanimously held the email that was sent was intimidating. The conduct of the respondent’s Sergeant was unwanted, and related to the claimant’s disability. Also, by forcing the claimant to sign a return-to-work plan, the behaviour created an intimidating atmosphere. This left him fearful for his job. The ET reached these conclusions based on their perception of what a reasonable observer would have been aware of. This included the claimant’s poor mental health.

The claim of victimisation was upheld. In dealing with the subject access request, the respondent caused the claimant to suffer a detriment. This was a result of the claimant’s protected act.

Note for employers

This case highlights the need for employers to deal with matters in a timely fashion. Failure to do so can cause the employee to suffer a detriment, as seen here.

Employers should also take note of the need to be mindful of the reasons for the employees’ absence. You should adapt your usual processes accordingly.

The employer didn’t take time to explain what was happening. As a result, the actions of the respondent were discriminatory—this resulted in harassment. They also failed to take into account the impact of the claimant’s mental health. Sending communications as they did, created an environment that was intimidating for the claimant. This should’ve been obvious to the reasonable bystander (according to the ET).

Support with harassment claims and working hours

When discrimination at work occurs, it can quickly escalate into messy and costly tribunal claims. While each case is different, there are always processes you should follow. That's why it pays to have the assistance of employment law experts on hand. Our team is made up of solicitors and legal advisors ready to support you immediately.

For advice on PILON and termination of contract, speak to one of our consultants today on 01455 858 132.

About the Author

Andrew Willis

Andrew Willis is the senior manager of the Litigation and Employment Department and assumes additional responsibility for managing Croner’s office based telephone HR advisory teams, who specialise in employment law, HR and commercial legal advice for small & large organisations across the United Kingdom.

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