Disabled employee described as ‘lively’ by manager wins discrimination and harassment claims

14 Feb 2020 By Siobhan Palmer

Although the remark was not ‘ill-intentioned’ it still violated the worker’s dignity, tribunal rules

A customer service adviser for HMRC has won claims for discrimination and harassment on the basis of disability after she was described as “lively” by her line manager. 

A Manchester employment tribunal (ET) upheld a complaint of discrimination and harassment brought by Stephanie Pemberton, who has rheumatoid arthritis, over a comment from her line manager that she "can become lively when there is a flare up” in her condition.

The ET noted, while the remark was “throwaway” and “not malicious or ill-intentioned,” it nonetheless had the effect of “violating Mrs Pemberton’s dignity or creating such an environment”, and HMRC was ordered to pay Pemberton £4,000 plus interest for injury to feelings. A number of other claims were dismissed. 

Pemberton had worked in HMRC’s customer service department since 2008. She took an extended sickness absence in 2016, and when she returned to work was issued with a ‘workplace adjustment passport’ which was updated every six months.

Her condition meant she needed a mobility scooter to get around. The tribunal heard Pemberton also had physical difficulty with tasks such as typing, and managed varying levels of pain and occasional fatigue.

HMRC was aware of Pemberton’s condition, and made adjustments so she could take extra breaks when necessary.

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In her end-of-year review in 2018, Pemberton’s manager, Mr Humphreys, said there had been complaints about her conduct in relation to a “loud and emotional” phone call with her husband taken at her desk. Pemberton was asked to refrain from such conduct in future.

The tribunal noted that, around the time of the review, Pemberton was concerned about the effects of her condition on her employment and worried to ask for further reasonable adjustments. But the ET determined these concerns were not made clear to Humphreys and so management was unable to address them. 

Shortly after the end-of-year review, Humphreys made a referral to HMRC’s reasonable adjustments support team (RAST). Humphreys asked the RAST for advice on any other adjustments that could be made outside of those in place, citing “behavioural concerns” during periods when Pemberton’s condition worsened. Pemberton was not consulted about this referral.

According to notes from a follow-up phone call, Humphreys told a RAST adviser she “can become lively when there is a flare up”.

The tribunal found “lively” was a shorthand developed by Humphreys to describe Pemberton’s sometimes argumentative demeanour, as well as occasional vocalisation of her pain, described by Pemberton as “yelping”. Pemberton became aware of the language used on the phone call in a document sent to her in January 2019 following a subject access request, and found the word “offensive”. 

Pemberton took this complaint, alongside a number of others, to tribunal claiming she had sent a draft grievance letter to her union representative but it had never been escalated. The tribunal dismissed all but one of the complaints on the grounds HMRC had never been made aware of any grievances.

But the tribunal did uphold the complaint of discrimination and harassment in regard to the word “lively”, ruling that because Humphreys had not provided any careful detail as to Pemberton’s symptoms and difficulties in the referral to the RAST, his language was “demeaning and belittling of her and her condition”.

Pemberton no longer works at HMRC, however it was noted in the tribunal that the circumstances surrounding her departure played no part in her claim. 

David Harris, managing partner of DPH Legal, said while the tribunal’s ruling might appear “harsh”, the important detail was Humphreys’ behaviour violating Pemberton’s dignity.

He advised employers to have an up-to-date and accessible equal opportunities policy that all staff are familiar with. He added it was important to give HR teams and management “training on all types of discrimination, and how to manage these types of situations a little bit more effectively, so that claims won't necessarily arise”.

Pemberton told People Management: “I fought tooth and nail – as a result policies were reviewed and implemented within my department, albeit after I had left, and although I don’t feel particularly altruistic, HMRC will think before they act in future.”

An HMRC spokesperson said: “We want HMRC to be a positive, respect-filled workplace where we can all reach our potential, deliver the best outcomes for the public and where the experience for all our people is a good one. Where we fall below these standards, we will seek to address the issues,", adding that the organisation will consider the outcome of the tribunal and "act accordingly".

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