A gym trainer with generalised anxiety disorder (GAD) and a phobia of coming into contact with bodily fluids was discriminated against after she refused to pick up sweaty towels, an employment tribunal has found.
The London South Employment Tribunal ruled that Ali Burton, who has been employed by the Crawley branch of fitness chain Nuffield Health since May 2018, had to repeatedly explain her mental health condition and the adjustments she required to managers, who “exhibited a sceptical attitude or made inappropriate comments” when she refused to pick up towels from the gym floor.
A further claim of victimisation was dismissed.
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The tribunal heard that Burton disclosed her mental health condition at the interview stage to fitness manager John Thornley, and again to Nuffield’s in-house occupational health team during her induction.
Occupational health passed her as fit to do the job with agreed modifications. It advised Thornley that she should not undertake hygiene-related tasks as it could be a trigger to her GAD. It also recommended that she be exempt from undertaking health appointments, which involved a blood test, and that her shift hours should be reduced and consecutive to ensure “ample time off” to manage her condition.
On 30 May 2018, senior general manager Mr Foord – who had not been made aware of Burton’s condition – asked her to collect sweaty towels from the gym floor. Burton claimed that when she explained that she couldn’t pick them up because of her mental health, he replied “we all have to do things that are unpleasant” and suggested that she pick them up with gloves on.
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He then allegedly pressured Burton into explaining her mental health condition, which the tribunal heard made her feel “embarrassed”, before he picked the towels up “mockingly” and told her: “You can do it like this – it’s good for the deltoids.”
Burton also claimed that Foord said they would have to talk more about her condition as it could “affect you working here”.
Following the exchange, Thornley passed on Burton’s occupational health report to Foord and told the tribunal he created a list of tasks that she should not be asked to undertake. However, the tribunal noted this document was not produced in evidence.
During the summer of 2018, Burton was on sabbatical to undertake a performing job. While she was off, Thornley was replaced by covering fitness manager Sarah Norman.
Norman contacted Burton about returning to work and questioned her reduced hours. In the email, she set out a rota that did not include reduced hours and asked Burton to “please explain why this seems unfair?”. She also asked Burton to discuss her mental health condition so she could “better understand”.
The tribunal said Norman’s tone in her emails conveyed “frustration at having to handle a less than straightforward return to work”.
Burton returned to work on 11 September 2018 and had a meeting with Norman to discuss her condition. During this meeting, Norman asked why Burton would work in a gym given her mental health condition and inability to be around bodily fluids, and allegedly likened it to her “having a milk phobia and working in Costa”. Burton also said Norman remarked that she managed a member of staff at another venue who used a wheelchair, but who did not require “any special treatment”.
The tribunal said it appeared Norman was “out of her depth” in taking over line management of Burton and appeared to have no training in how to handle the discussion “appropriately”. It added that if she had received support from HR she may not have caused Burton distress.
Following this, on 8 November, Burton – who was using the gym on her own time – was called into a meeting with Jon Bugg, whom the tribunal noted had “appointed himself” to take charge of certain areas of management, although did not have any formal line management responsibility. Bugg alleged Burton had failed to attend a one-on-one meeting with him and threatened to mark this as a non-attendance in her probationary review, even though he did not have the authority to do so.
The tribunal heard Bugg also told Burton she needed to “email the latest diagnosis she received precluding her from certain tasks in the workplace”.
Burton said she was “extremely upset” by the meeting and left the building in distress. She raised a grievance the following day.
On 1 February 2019, Burton had a grievance meeting with senior general manager James Chapman, but she received an outcome letter on 18 February stating the grievance was not upheld.
In the letter, Chapman advised that Burton forward her GP notes and medical history to himself and HR, a request the tribunal felt was “inappropriate”. The tribunal also added that Chapman was not experienced or trained in the “proper handling of mental ill-health or disability”.
Burton wrote to Chapman on 19 February to say she was unhappy with the outcome, and Chapman wrote directly to occupational health to assess her “attitude and inability to hold conversations with her line managers without turning them into massive negative issues”. He added that Burton’s attitude to her condition made “managing her impossible for the team”.
Burton continued to challenge the verdict of the grievance but, following a protracted process, her grievance was not upheld and she lodged a tribunal claim.
Burton’s complaint of direct discrimination succeeded in part, as did her complaint of discrimination because of something arising in consequence of disability; of harassment; and of failure to make reasonable adjustments.
In its ruling, the tribunal said Nuffield Health lacked “adequate arrangements” for communicating important information about Burton’s condition, and that this formed part of an “ongoing discriminatory state of affairs”.
The tribunal added that there was a limited understanding of her condition, and that the failure to appropriately train managers to deal with Burton’s condition was “surprising in an organisation whose purpose is to promote health and wellbeing”.
Alan Lewis, partner at Constantine Law, said the case highlighted the need for proper training. “The root cause of the problems for the employer in my view were a basic lack of comprehension and training among management in diversity issues,” he said.
He said training could help employers avoid behaviour that may result in them becoming vicariously liable for discrimination: “It can, as part of a collective set of reasonable steps, create a statutory defence for the employer where an employee has overstepped the mark and has subjected a colleague to discriminatory treatment.”
Nuffield Health was contacted for comment. Burton could not be reached for comment.
A remedy hearing is yet to take place.