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Overweight police officer wins claim after boss said she should stop drinking ‘gallons of Coke’

Overweight police officer wins harassment claim after her boss told her she might feel better if she stopped drinking ‘gallons of Coke’

  • DC Kerry Moth was told she needed to ‘take more responsibility’ over her diet
  • She is in line for compensation after a judge ruled she was discriminated against
  • The officer suffered from the painful condition fibromyalgia, and had 179 days off work over a four-year period, the tribunal heard

An overweight police officer whose boss said she might feel better if she stopped drinking ‘gallons of Coke’ has won a claim for harassment.

Detective Constable Kerry Moth was ‘humiliated’ when she was told she needed to ‘take more responsibility’ over her diet, a tribunal in Exeter heard. 

Superior officer Detective Sergeant Daryl Marvelly said if colleagues saw she was making an effort to slim down they would have more respect for her, the hearing was told.

Now DC Moth is in line for compensation after a judge ruled she had been discriminated against.

The officer, who joined the Devon and Cornwall Police in 2003, suffered from the painful condition fibromyalgia, and had 179 days off work over a four-year period, the tribunal heard.   

In July 2018 over lunch at Barnstaple Police station, DC Moth told DS Marvelly that she was ‘fed up’ with people assuming her weight contributed to her condition, the hearing was told. 

Detective Constable Kerry Moth was ‘humiliated’ when she was told she needed to ‘take more responsibility’ over her diet, a tribunal in Exeter heard (stock image) 

In July 2018 over lunch at Barnstaple Police station, DC Moth told DS Marvelly that she was 'fed up' with people assuming her weight contributed to her condition, the hearing was told

In July 2018 over lunch at Barnstaple Police station, DC Moth told DS Marvelly that she was ‘fed up’ with people assuming her weight contributed to her condition, the hearing was told

DS Marvelly replied that he thought losing weight might take the ‘strain off her body’ and suggested that she would earn the respect of other officers if she if she tried to shed some pounds.

WHAT IS FIBROMYALGIA?

Fibromyalgia is a chronic condition defined by widespread pain and fatigue.

It affects up to 2.7 per cent of people worldwide, with three women suffering for every one man, studies suggest.

Fibromyalgia is often triggered by a trauma, such as a car accident or childbirth, as well as infections. Why this occurs is unclear.

The discomfort tends to be felt as aches and burning from head-to-toe.

And the fatigue ranges from feeling sleepy to the exhaustion of having the flu.

Severe sufferers are often unable to work or socialise. 

The pain can be worse at some times than others and may change location, such as becoming more severe in parts of the body that are used the most.

Other symptoms can include headaches; IBS; diarrhoea or constipation; poor concentration; dizziness; allergies and stimuli sensitivity, such as to light or heat.

Studies suggest the average patient waits five years to be diagnosed, which is thought to be due to X-rays and other medical tests not picking the condition up.

It is generally defined as pain that lasts for more than three months and affects 11 or more out of 18 tender points when pressed.

Treatment aims to relieve pain and aid sleep.

Source: Fibromyalgia Action UK  

The tribunal heard that in February 2019 Professor John Harrison from the force’s Occupational Health department delivered a report on how the illness affected DC Moth’s ability to do her job.

He explained that Fibromyalgia is a chronic condition that requires people to learn to live with the condition and modify their lifestyle.  

In the unlikely event of a situation becoming violent, in Professor Harrison’s view, DC Moth would be able to protect herself and come to the aid of a fellow officer.

However, he added that she was not fit to undergo a fitness test and therefore could not undergo officer safety training.

Professor Harrison later confirmed that she would ‘never’ get through a fitness test in her remaining time in the force owing to her health issues.

After further issues arose over how DC Moth would be able to carry on her work, it was eventually decided there should be an ‘unsatisfactory performance procedure’ meeting.

At the meeting in July 2019 DS Marvelly made it clear that he felt she needed to take ‘more responsibility over her diet and weight’.

DC Moth said that her weight was not a result of what she was eating, rather it was due to medication she had to take for her condition.

She said the pain killers she took desensitised her nerve endings including those in her stomach, meaning she did not feel full when eating and so ate excessive amounts.

DS Marvelly then told her that he didn’t dispute what she was saying but he regularly saw her drinking ‘gallons of Coca Cola’.

The tribunal heard Ms Moth became very upset by this and said she only drank zero calorie and decaffeinated coke.

A short while later, following further meetings about her capabilities, DC Moth announced she would be bringing a claim to an employment tribunal.

Employment Judge Alastair Smail, said: ‘We had little doubt that this [meeting] was a humiliating experience for [DC Moth]…

‘[DS Marvelly] was not acting in bad faith but he did not have a basis upon which to continue to challenge the [DC Moth] along these lines.

‘It foreseeably had and did have the effect of humiliating her.

‘It was unfortunate. Referring to [her] drinking gallons of Coca Cola indicates an unprofessional tone in the discussion.’

He said the force had ‘failed to make reasonable adjustments to attendance management targets to take into account [Ms Moth’s] disability’.

He added that it had also breached the equality act by subjecting Ms Moth to unfavourable treatment related to fitness training.

He concluded that Ms Moth was ‘harassed’ by DS Marvelly’s comments about her weight and diet and ordered a remedy hearing to decide compensation be held at a later date.

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