In Gardner v Chief Constable of West Yorkshire Police and another, after a 6 week absence due to stress, PC Gardner participated in a return-to-work interview conducted by a Sergeant. When discussing the communication of Gardner’s return to work to his colleagues, the Sergeant commented that Gardner had been absent from work because he “went a bit doolally f*****g tap” (meaning to 'lose one’s mind', derived from the boredom felt in an Army transit camp) and mentioned “One Flew Over the Cuckoo's Nest”, a film which relates to people suffering from mental illness.

Gardner claimed disability harassment, i.e. unwanted conduct related to a disability that has the purpose (intentionally) or effect (unintentionally) of violating an individual's dignity or creating an intimidating, hostile, degrading,  humiliating or offensive environment for that individual. Where the conduct is unintentional, the tribunal has to decide whether it is reasonable to conclude that the definition of harassment has been met, taking into account the ‘victim’s’ perception and the other circumstances of the case.

The tribunal upheld the disability harassment claim. While the comments were not made with the intention of causing offence, the context within which they were made was important. Here, the comments were made by a Sergeant in determining how the news of Gardner’s return to work, following sickness absence, would be communicated. In the circumstances, Gardner perceived the Sergeant’s remarks as being derogatory and negative about his stress-related illness and as this made Gardner feel awkward and uncomfortable, it was reasonable to find that the definition of harassment had been satisfied.

This case highlights the need for those conducting return to work interviews to be very careful about their choice of words. This should be emphasised through training, accompanied by a return to work interview checklist, which includes references to the organisation’s equality policy together with a statement expressing a zero tolerance of any discrimination because of, or harassment related to, the prohibited characteristics in the Equality Act 2010. 

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