Return to office working disadvantaged disabled employee
A Scottish Employment Tribunal has decided that an employer failed in its’ duty to support a disabled employee when refusing a request to work from home.
The employer, Accountant in Bankruptcy, is the Scottish government agency responsible for administering the process of personal bankruptcy and corporate insolvency. They had refused a request to work from home on a permanent basis, which the employee challenged.
The legal duty
If an employer has knowledge of a disability, they have a positive duty to make reasonable adjustments to reduce the disadvantage caused by the disability, when compared to other employees.
Whether or not working from home can be a reasonable adjustment is becoming a thorny issue for employers, as increasing numbers of businesses ask employees to reduce home working.
The facts of the case
The Claimant, Mr J-P Pryce, argued that his employer had failed to make adjustments for his disability when it asked him to return to the office two days a week.
Mr Pryce had a history of agoraphobia, claustrophobia and anxiety. He had a current diagnosis of social anxiety and mysophobia (“germophobia”). Mr Pryce avoided indoor spaces and suffered panic attacks about the prospect of returning to work in the office.
The issues were vividly illustrated during the hearing when Mr Pryce became extremely distressed when required to contemplate a phased return to the office and how it might affect or benefit him. The Tribunal agreed the Mr Pryce was disabled and turned to the issues surrounding his return to the office.
The employer had allowed all its staff to work remotely during the pandemic, although it later changed its policies to require office attendance two days a week. Mr Pryce requested that he be allowed to continue to work from home, which the employer agreed to on an interim basis.
The employer argued that permanent working from home was not a reasonable adjustment for them to make. The essence of their case being that some minimum amount of office working generates benefits both for clients and for staff. They argued that the disruption and non-financial cost of the proposed adjustment was too great for it to be reasonable.
The Tribunal decision
The Tribunal decided that the employer had failed in its duty to make reasonable adjustments. This was because the employer’s office working policy caused Mr Pryce a substantial disadvantage, compared to other employees. The adjustment requested (permission to work from home full-time) was a ‘reasonable’ one.
The benefit of allowing Mr Pryce permanent home working far outweighed the potential difficulty and disruption caused by the adjustment. The Tribunal decided that the failure to allow Mr Pryce to work from home was a failure to make reasonable adjustments for his disability.
Mr Pryce did not seek any compensation if successful. The remedy sought was limited to a declaration of discrimination.
Further advice from the Tribunal
The Tribunal also recorded helpful advice for employers in the judgement, which they consider would reflect best practice:
- Both sides must be prepared to keep the situation under periodic review. Entrenched positions are unhelpful.
- This judgment does not necessarily provide a durable answer. Circumstances may change. Both sides must therefore engage in an ongoing dialogue about adjustments.
- It is necessary for both sides to cooperate to ensure that good expert advice is available on the questions of support and adjustments. That almost certainly entails obtaining up to date OH or other medical evidence. The claimant must cooperate with that. His distrust of OH evidence in general and his assumption that it will always support the employer’s position is not well-founded.
- If an employee has objections to particular OH practitioners or OH providers because of past experiences, then there are many others that the respondent could choose instead.
- Employers are reminded of the valuable EHRC Code of Practice on Employment, of which Chapter 6 deals with the duty to make reasonable adjustments. Other useful resources are available on the EHRC website.
Important note about Tribunal decisions
It is important to note that Tribunal decisions do not set legally binding precedents. Each case is always decided upon the facts relevant to that case. Tribunal decisions are useful indicators for employers. Independent professional advice should always be sought at the earliest opportunity.
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