Anglian Water Put “Unfair and Immoral” Pressure on an Employee Recovering from Hysterectomy

In Miss Crette Berry v Anglian Water Services Ltd, an employment tribunal ruled the employer had harassed their employee by contacting them too soon post-surgery. Read on as we examine what happened, the tribunal’s judgment and whether employers can contact their workforce when absent. 

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The Facts in Miss Crette Berry v Anglian Water Services Ltd

Background

Miss Crette Berry (“The Claimant”) began working for Anglian Water Services Ltd (“The Respondent”) in May 2022 as a contact centre agent. Upon being offered the job a month earlier, she informed the respondent she would require a hysterectomy in the future.

Miss Crette Berry Makes Flexible Working Request

When the claimant commenced her role, she worked under a flexible contract, totalling 37 hours weekly. Unfortunately, this wasn’t working for the respondent, and she raised concerns about the arrangement in June. 

Miss Berry subsequently submitted a flexible working request on 23 June, asking for her working hours to be reduced. She also requested that her hours become more predictable and that she only work one weekend per month. The claimant explained she’d been struggling to cope with her menopause symptoms, and this would enable her more “me time”.

The following day, the claimant was absent from work due to “gynaecological reasons”. When she returned, Anglian Water undertook a return-to-work interview. Here, Miss Berry stated that she’d been unwell because she’d failed to take one of her prescribed medications in time. That said, she claimed that she was fit enough to return and that approval of her flexible working request would assist in this.

Claimant Referred to Occupational Health

On 30 June, the claimant was invited to a flexible working request meeting and referred to Occupational Health (OH). An OH assessment took place on 6 July, which concluded she’d been suffering from endometriosis for roughly ten years and was awaiting a hysterectomy. The report also outlined that this meant she experienced brain fog, fatigue, and hot flushes.

Due to Miss Berry’s symptoms, OH recommended strategies she could use to reduce her fatigue. They also advised that until the claimant underwent surgery, the respondent should allow her “additional welfare breaks”.

Then, on 7 July, the flexible working request meeting occurred. The claimant discovered the following day that her request had been almost entirely approved, barring that she would be required to work an additional hour in the evening.

However, eight days later, the claimant informed Anglian Water that her personal circumstances had changed. Consequently, she requested an amendment to her flexible working arrangement. Due to childcare commitments, Miss Berry stated she couldn’t work evenings during the week. Since she couldn’t make a new flexible working application that year, she appealed the decision of her original request.

Sickness Absence Management Triggered Before Anglian Water Faced Grievance

In the subsequent months, Miss Berry had several further absences and assessments by OH. This led to an Attendance Support Meeting via Teams on 22 September, during which she disclosed that she’d been suffering from depression and taking medication for it.

Consequently, a further Attendance Support Meeting was arranged for 4 November to discuss the claimant’s long-term sickness absence. However, by 7 November, the claimant’s relationship with the respondent broke down, leading to her raising a grievance.

The claimant explained that she couldn’t attend a face-to-face meeting due to her inability to drive and would prefer her grievance to be dealt with via correspondence. Despite Anglian Water offering a taxi to bring the claimant to the office so that the matter could be dealt with in person, the claimant remained firm in her position.

Miss Berry said, “I appreciate your reply and offer to fund a taxi”; however “, [I] fear that another meeting would trigger my depression and suicidal thoughts”. She added, “In my experience, I could not undertake a physical meeting at this time without risking my fragile mental health further… Written communication is preferred due to difficulties arising from my disability”.

Claimant Resigns from Anglian Water

On 26 November, the claimant began ACAS early conciliation before submitting her first claim on 19 December. Three days later, she underwent surgery for her hysterectomy. OH estimated that her recovery would take up to four weeks.

Despite OH’s advice, the respondent invited Miss Berry to an Attendance Support Meeting scheduled for 13 January 2023. Having heard nothing, they chased for a response on 10 January. As a result, the claimant responded, informing them that she was “very poorly” and had a “post-surgery infection” which hadn’t been responding to medication.

Following further correspondence, the Attendance Support Meeting eventually took place on 17 February in the claimant’s absence. After the meeting, Anglian Water sent a letter to Miss Berry stating that they couldn’t sustain her non-attendance indefinitely and would, therefore, have to consider her ongoing employment. Subsequently, the claimant resigned with notice on 25 February.

The Employment Tribunal’s Judgment

Before the tribunal, Miss Berry brought claims of a failure to make reasonable adjustments at work and disability-related employee harassment. While the tribunal dismissed some of her claims, they upheld several concerning harassment at work.

The tribunal explained that although “the overwhelming majority” of correspondence from Anglian Water had been “polite and appropriate”, their conduct post-surgery wasn’t. Knowing the claimant’s recovery time, they stated she shouldn’t have been contacted until after 13 January. 

With this in mind, the tribunal found three occasions where the respondent’s actions amounted to “unwanted conduct”. As such, they ruled Miss Berry had faced harassment in the workplace, meaning a remedy hearing will occur in the future.

Can My Employer Contact Me While I’m Off Sick?

Following the case against Anglian Water, individuals may wonder whether their employer can contact them during sick leave. Generally, employers are allowed to keep in touch during sick leave for reasonable purposes, such as discussing health, managing the return to work, or addressing any ongoing work-related issues. 

That said, this contact must be reasonable, necessary, and proportionate to avoid causing distress or escalating any existing concerns. This is especially true if an employee has a health condition or disability, as highlighted above.

In Miss Berry’s case, despite OH’s recommendation that her recovery from surgery would take up to four weeks, the respondent contacted her within this period. The tribunal determined that this contact was inappropriate and consequently ruled it harassment.

When reporting harassment at work, it’s essential to ensure any communication from the employer during sick leave is carefully handled. Inappropriate or excessive contact can aggravate existing health conditions, particularly where mental health is involved, as was the case with Miss Berry. It’s vital that employers balance keeping in touch during sick leave with respecting the employee’s condition and ensuring that their actions don’t contribute to any form of workplace harassment or discrimination.

If you have any questions following the Anglian Water case or believe your rights have been breached, please contact us. Redmans Solicitors have years of experience, enabling us to provide specialist advice to help solve your problem.

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