Coughing in employee's face was harassment, tribunal finds

The cough played a major part in the employee's decision to resign, the tribunal heard

A boss of a car sales property business who deliberately coughed in an employee’s face during the Covid-19 pandemic has been ordered by a tribunal to pay the employee £26,000.

A female employee at Cawdor Cars asked colleagues to socially distance from her due to health fears just before the first lockdown was announced in 2020.

The tribunal heard that the boss, Kevin Davies, deliberately coughed in her face, which the judge said ridiculed and intimidated her.

The decision highlighted the risk to employers of not taking employees’ health concerns seriously, commented Fiona Morgan, head of employment at Arbor Law.

Speaking to HR magazine, she said: “This case shows exactly what can go wrong when employees who raise health and safety concerns are treated with derision.

“In this case, the conduct of the employer’s owner flew in the face of all government social distancing guidance at the time, and the tribunal found that the conduct was 'appalling' and designed to ridicule and intimidate the claimant in circumstances where she had a known disability.  

“The individual concerned could easily have respected the claimant’s requests and treated her with respect and dignity.”


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The female employee, who had psoriatic arthritis and an autoimmune condition, worked at Cawdor Cars from 2017 to 2020.

Just before the first Covid lockdown, she asked employees to socially distance from her. The tribunal heard that Davies coughed in her direction “deliberately and loudly, commenting that she was being ridiculous”, the BBC reported (15 July).

The report noted that the employee complained about the incident, which reportedly played a “major and significant” part in her decision to resign from the company less than three months later.

Employment judge Tobias Vincent Ryan is said to have ruled that Davies victimised her, resulting in unfair dismissal due to the role that the incident played in her resignation.

Cawdor Cars was ordered to pay her £18,000 in damages for injury to feelings, and Davies was told to pay £3,841.94 for unfair dismissal and £4,596.90 in interest.

The case showed the need for employers to provide reasonable adjustments for employees with a disability, to avoid claims of harassment and discrimination, according to Naeema Choudry, partner at law firm Eversheds Sutherland.

“Employers need to listen carefully to any concerns that employees raise about their health, not only from a good employee relations point of view but also to ensure that they comply with any duty to make reasonable adjustments,” she told HR magazine.

“A failure to put in place reasonable adjustments not only exposes an employer to grievances but also to claims for disability discrimination, for which there is no cap on the amount of compensation payable.

“Furthermore, as in this case, there can be personal liability for managers or employees who discriminate against employees who are classified as disabled under the discrimination legislation.”


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Morgan added that HR should implement policies and training to prevent harassment against employees with health concerns.

She continued: “HR should ensure that robust policies are in place that expressly prohibit retaliation against colleagues who raise concerns about their treatment in the workplace. HR should ensure that all staff, including managers and business owners, are trained on these policies.”

Investigating reports of victimisation in the workplace could prevent tribunal claims from escalating, said Choudry.

“Employers should thoroughly investigate any concerns by employees for victimisation and where appropriate take disciplinary action against the perpetrator to prevent it escalating,” she noted.

“This will send a message to employees that victimisation is not acceptable in the workplace and will not be condoned by the employer.”