Katrina Hibbert worked at Thames Valley (TVP) police from 2004. In 2019 she was signed off sick from work with stress after learning a vulnerable young person she worked with had died.
An occupational therapist suggested a creative distraction could help her cope with the stress; Hibbert started a party and events company after gaining business interest approval from the force. In 2019, however, her manager withdrew the approval after seeing her post “upbeat" and “happy” messages on social media.
Shortly after, TVP launched a disciplinary investigation for gross misconduct against Hibbert, but she quit in March 2020 as she was "not mentally strong enough to battle through a gross misconduct". The tribunal ruled this was constructive unfair discriminatory dismissal.
Employers should ensure their refusal for business interest approval is not discriminatory, commented Matt Jenkin, partner at firm Herrington Carmichael.
"Whilst it is the case that many employers require employees to obtain their approval for carrying on other businesses, the case highlights that employers need to provide clear and justifiable reasons for refusing business interest approval," he told HR magazine.
"These should be applied consistently to avoid claims of unfair treatment or discrimination. The case shows that if the refusal to grant business interest approval is linked to an employee's disability in some way, such as needing to manage their condition by engaging in a different kind of work, it could be considered discriminatory if the employer cannot objectively justify their decision.
"This case also underlines the need for employers to understand and accommodate specific needs related to disabilities, such as approval for business interests that might accommodate or mitigate the effects of a disability."
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Hibbert was a neighborhood safeguarding sergeant from 2017, after she stepped down from her previous role as acting inspector due to “burnout, depression and anxiety”.
Her job required her to work with young people and families going through difficult circumstances. The tribunal noted that Hibbert was a "dedicated and highly regarded officer”.
In 2018 Hibbert’s mental health began to deteriorate; she started having panic attacks and PTSD symptoms.
An occupational nurse advised her to pursue hobbies and interests to manage the intensity of her policing work. Hibbert soon set up a parties and events business, with approval from TVP force, and started proactively managing her wellbeing.
The tribunal report noted working on the event business benefitted Hibbert’s mental health, which started to improve.
In 2019 Hibbert learned that a vulnerable young person she had worked with had died. She was signed off work with stress for over a month.
TVP had a policy that said it would review employees’ external business interests regularly to assess whether it had “become incompatible with working for Thames Valley Police”.
During the review of Hibbert’s business her line manager raised concerns that she had posted on the social media page of her events business while signed off sick. “I feel it is unsuitable to be running an active business whilst unable to fulfil your obligations to your employer,” he noted.
Hollie Roberts, the force security advisor, wrote to Hibbert to withdraw approval to run her events business. She explained the decision was made as the force was concerned running her external business while she was off sick could delay her return.
The tribunal report noted, however, that Roberts did not contact occupational health or conduct a severity assessment of the impact the withdrawal could have on Hibbert’s wellbeing.
Roberts had no knowledge of the fact occupational health had suggested Hibbert pursue creative hobbies to assist with her mental wellbeing.
The tribunal heard Hibbert was “beside herself” after her business interest approval was withdrawn, as this was a “significant coping mechanism” for her.
Hibbert appealed the withdrawal of approval, saying “I’m not sure this will promote a faster return to work but rather a spiral into deeper depression”.
The tribunal noted the withdrawal exacerbated Hibbert’s anxiety, panic and depression and made her feel she was being punished. She remained signed off work.
Two months after the withdrawal, a member of the public emailed the force with concerns Hibbert was signed off work sick while “moonlighting” her events business. A disciplinary investigation into her conduct was launched, but Hibbert resigned.
Her resignation letter read: “I am not mentally strong enough to battle through a gross misconduct hearing. Thus for my own self-preservation I have decided to leave a job that I enjoyed and felt extremely passionate about.”
Employment judge Hawksworth ruled the decision to remove the approval was discriminatory in that it removed a reasonable adjustment. She also ruled the removal was a significant reason for her resignation – “a very difficult decision for her because of the importance she attached to her career”.
The tribunal accepted evidence from a doctor, who claimed the discrimination exacerbated Hibbert’s mental health disorders. It also impacted the effectiveness of her treatment.
The tribunal awarded Hibbert £1,176,368 for loss of earnings and injury to feelings, as it ruled she would have remained a police officer and would have applied for a promotion to inspector and been successful. Hibbert was successful in claims for constructive discriminatory dismissal; failure to make reasonable adjustments by approving her business interests; and discrimination arising from disability in relation to the withdrawal of permission for a business interest.
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"Employers need to remember that even though an employee is off sick, they remain an employee and so the obligation to make reasonable adjustments continues throughout," Oli McCann, employment lawyer at employment law, HR and health and safety firm AfterAthena, told HR magazine.
"In this case, the reasonable adjustment was about activities outside work to help the employee manger her mental wellbeing, this should have continued even though absent from work."
Jenkin encouraged employers to review their policies around reasonable adjustments in light of this case.
He continued: "Employers should carefully consider and regularly review and manage their policies, particularly around accommodating disabilities and how that may impact on business interest approval."
To encourage employees on sick leave to return to work, employers should tailor support for individuals, suggested Ian Moore, managing director of consultancy Lodge Court.
Speaking to HR magazine, he said: "Supporting employees on sick leave requires a thoughtful approach from employers.
"Understanding that each employee's situation is unique; employers should tailor their approach to accommodate individual needs, ensuring any reasonable adjustments effectively promote recovery.
"Cultivating a supportive work environment that values employee well-being is vital. Recognising the importance of creative outlets or side projects for stress relief and respecting these choices can enhance morale and resilience, ultimately benefiting both the employee and the organisation.”
