A police officer has won a claim for harassment after her boss said she might feel better if she stopped drinking ‘gallons of Coke’.
Detective constable Kerry Moth was afflicted by illnesses including visceral hyperalgesia (regional pain syndrome), depression and, later, fibromyalgia. She was overweight because of the medication needed to lessen her symptoms, an employment tribunal in Exeter heard. She had joined the police in 2003 and was stationed in Barnstaple, Devon.
Her sickness record came under scrutiny from Devon and Cornwall Police after the Bradford scoring system, then used by the force’s HR department, alerted managers to the frequency of her absences.
After 2016 a succession of action plans involving her line managers, occupational health and HR were drawn up to support her in her work and to reduce absences.
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The court heard that the scoring system, no longer used by the force, looked at days absent multiplied by the number of occasions absent, squared. It’s based on the principle that intermittent absences are worse than one extended absence.
Her manager, DS Marvelly, received an attendance flag in December 2018 and met Ms Moth who told him that she wanted to see the force medical adviser to see if she could work from home when she was poorly as people with childcare responsibilities could. They discussed fitness tests that officers were required to take and set out further plans for her future within the force.
In early 2019 Professor Harrison, for the force’s occupational health team, informed managers that Ms Moth was disabled under the terms of the Equality Act, but she was fit to work in her current role and fit to make arrests and assist other officers. She was not fit, however, to undergo officer safety training (self defence skills), work night shifts or use equipment such as batons or handcuffs. Prof Harrison stated that ill health retirement would only be addressed once all reasonable adjustments and deployment had been considered.
Marvelly, however, told the claimant that he wanted to refer her “to a nutritionist to see if you lost weight if you could do the fitness test”.
During a case conference meeting on 4 March 2019 Marvelly brought up the topic of the Ms Moth’s diet and questioned whether it would help from a fitness perspective for her to make changes.
At a 9 July 2019 meeting, Marvelly told Ms Moth she should “take more responsibility” over her diet and that if colleagues saw she was making an effort to slim down they would have more respect for her. A year prior to this Ms Moth told Marvelly that she was fed up with people assuming her weight contributed to her condition, the hearing was told. But by 2019, according to Katie Lyle of HR, there had been a deterioration in the relationship between the two colleagues.
During the meeting, after Ms Moth pointed out that on her action plan she was required to take medications that had a side-effect of weight gain, 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, Marvelly replied: “Not every day and you drink gallons of the stuff.”
However, the tribunal heard DC Moth only drank zero or low calorie versions of the drink. The ruling stated: “We had little doubt that this was a humiliating experience for the claimant” adding that Marvelly should not have made the comments partly because they issue around diet had already been discussed by occupational health and Ms Moth.
Ms Moth is now in line for compensation after a judge ruled she had been discriminated against. A remedy hearing will decide the level of compensation.
Employment Judge Alastair Smail concluded that Ms Moth was “harassed” by Marvelly’s comments about her weight and diet. He said: “We had little doubt that this [9 July meeting] was a humiliating experience for [DC Moth]… ‘[DS Marvelly] was not acting in bad faith but he did not have a basis upon which to continue to challenge [DC Moth] along these lines.
“It was unfortunate. Referring to [her] drinking gallons of Coca Cola indicates an unprofessional tone in the discussion.”
He said the force had “failed to make reasonable adjustments to attendance management targets to take into account [DC Moth’s] disability”.
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He added that it had also breached the Equality Act by subjecting Ms Moth to unfavourable treatment related to fitness training.
