A water company has been held responsible for harassment after it repeatedly chased an employee about returning to work after surgery.
Miss Berry worked as a contact centre agent at Anglian Water. When she was offered the job in April 2022, she made the company aware that she would need a hysterectomy in the future.
She began work in May 2022, initially on a flexible contract that would mean working 37 hours a week. However, in June 2022 she raised concerns about her working hours with her manager, subsequently submitting a flexible working request.
In her request, she asked to reduce her weekly hours to 30, and to receive a more predictable pattern of hours, working a weekend shift once a month. Berry told her employer that this would afford her some “me time” as she was struggling with menopause symptoms.
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She also informed Anglian Water in her request that she struggled to maintain mental clarity due to menopausal brain fog. She did not indicate that her application was in respect of seeking reasonable adjustments under the Equality Act, however.
Berry took a day’s absence for “gynaecological reasons” later that month and when she returned attended a return to work interview where she explained that this had been because she was late taking one of her prescribed injections.
She was invited to a flexible working request meeting to discuss her proposal, and Anglian Water also commissioned an occupational health assessment. This concluded she had suffered from endometriosis for around 10 years, the reason she was waiting for a hysterectomy.
The assessment recommended she follow strategies to reduce her fatigue and brain fog, and that she could have “additional welfare breaks” until she had surgery.
In July, her flexible working request was granted almost in its entirety, requesting that she work an extra hour between 10pm and 11pm.
Berry responded to the request stating that a change in personal circumstances and childcare arrangements (she had just split from her partner) meant she would only be available between 8am and 5pm during the week. She appealed the outcome of her request.
After a number of further periods of absence and assessments by occupational health, she disclosed that she had depression and was taking medication. Her manager attempted to get in touch with her to discuss her long-term absence, and she was invited to a number of meetings to discuss her return to work.
The tribunal concluded that in early November 2022, Berry’s relationship with Anglian Water broke down, and she never returned to work for the company after that. Berry said she could not attend physical meetings because she could not drive and this would “risk my fragile mental health further”.
Later that month she commenced early conciliation proceedings with Acas. Her hysterectomy was scheduled for 22 December. Occupational health estimated her recovery would take approximately three to four weeks.
However, in January 2023 Berry was invited to an “attendance support meeting” by Anglian Water to discuss a potential return to work and any potential adjustments she might need.
After being chased for a response, she told her manager that she had acquired a post-surgery infection and was “very poorly”. A number of responses wished her well but urged her to get in contact as soon as she was able.
The attendance support meeting took place in February in Berry’s absence. Anglian Water then sent her a letter saying it could “not sustain her non-attendance to work indefinitely”, and that a probationary review would be arranged. She resigned a week later.
Dr Peter McTigue, employment judge, said that, while most of the company’s contact with Berry had been “polite and appropriate”, they should have given her more time to recover from her surgery.
He said her manager had been aware of her surgery since she had flagged it when she began working there and that occupational health had noted potential recovery times when her surgery finally took place.
“The consequence of that is that contact with the claimant should have been avoided until after 13 January 2023 in order to allow the claimant to recover from her surgery,” the judgment said.
The tribunal ruled that three points of contact had been “unwanted conduct” related to her disability, and her claim for harassment succeeded. A further claim of discriminatory constructive dismissal was dismissed. A remedy hearing will be listed to determine compensation.
Anglian Water said in a statement to the BBC: “We take looking after our people incredibly seriously, and are pleased that the judge and panel found no failing in our overall people management processes.”
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