I came across a recent case involving West Yorkshire Police that falls into the category ‘I can’t believe a line manager thought this was appropriate’. Unfortunately, given what I do, it tends to be a fairly regular occurrence. In this particular case, PC Gardner had been absent from work for 6 weeks with stress and insomnia. A few days before he was due to return to work he attended a return to work interview with his line manager, one Sergeant Bedford. Unbeknown to Sgt Bedford, PC Gardner was covertly recording that interview (that in itself suggests there had already been some kind of breakdown in trust between the two of them).

When it came to the part of the meeting where they were discussing how PC Gardner’s return to work would be communicated to colleagues, Sgt Bedford made comments that PC Gardner had been absent from work because he ‘went a bit doolally fucking tap’ (Sgt Bedford, being a former soldier, knew this as army slang for ‘losing one’s mind’), making a reference to the film ‘One Flew Over The Cuckoo’s Nest’, a film in which a character is institutionalised for a serious mental illness.

Unsurprisingly, PC Gardner claimed harassment on the grounds of a disability under the Equality Act, arguing that Sgt Bedford’s conduct was unwanted, related to his disability and that it had the purpose or effect of violating his dignity, creating an intimidating, hostile, degrading, humiliating or offensive environment.

As you will know, the fact that PC Gardner found the comments offensive would have been taken into account by the Tribunal.

The Tribunal accepted that Sgt Bedford had an informal and friendly relationship with PC Gardner and that Sgt Bedford wasn’t intending to cause offence, but it nevertheless found that PC Gardner was entitled to interpret the comments as derogatory and negative about his illness. They found that he may well have laughed but that laugh was a nervous one and that the meeting was awkward and uncomfortable.

The Tribunal then had to consider the extent to which the employer should be vicariously liable for the actions of Sgt Bedford. It found that he hadn’t been provided with any equal opportunities training. Whilst there was an Equal Opportunities Policy, it didn’t mention harassment as a separate form of discrimination and the police’s Return To Work Policy made no mention of equality and diversity. The Tribunal was critical that the employer had no systems in place to monitor staff training and equality issues and were particularly critical of the lack of action taken once PC Gardner had raised a grievance about the comments. For those reasons, the employer was found to be jointly liable with Sgt Bedford for the harassment. They found that the case fell within the lower band that is used when calculating compensation for injury to feelings which is up to £6,000.

This case illustrates perfectly how not only can a throwaway comment by a member of staff lead to a complaint of discrimination, but how an employer’s entire system can come under scrutiny. Even if we are completely generous towards Sgt Bedford and accept that he wasn’t aware of the effect of what he was saying, we do need to question why he was so unaware and lacking in empathy towards his colleague. I often find that in equality and diversity training sessions it is talking about these sorts of cases that brings the subject to life for managers. It is only once they see how ‘banter’ can be problematic that they then start analysing their conduct and whether it needs to change. I often find that the action points and pledges that staff make at the end of sessions shows the journey they have been on during the training. I would recommend if you haven’t given line managers equality and diversity training in the last 3 years that you think about doing some refresher sessions. Contact me to discuss various training options.