Refusal to allow continued working from home unlawful and amounted to discrimination

In a recent case before the Glasgow Employment Tribunal, it was unanimously decided that a refusal to allow a 100% work from home pattern was a failure to make reasonable adjustments (contrary to sections 20 and 21 of the Equality Act 2010).

The Claimant (Mr Pryce) began employment with the Respondent (a government agency responsible for administering the processing of bankruptcy and insolvency) in 2007. In 2020 he began working entirely remotely/from home as a consequence of the pandemic.

As with many employers, the Respondent began a phased return and by 2022 was requesting that staff attend the office at least 2 days per week. The Claimant alleged that his disability (arising from agoraphobia, claustrophobia and anxiety) prevented him from returning to the office and requested to continue working full time from home. His employer rejected his request on the basis of “ disruption and non financial cost”- and argued that some amount of time must be spent at the office to allow both colleague and client benefit. The ET found that this concern was exaggerated and that the refusal amounted to a failure to make a reasonable adjustment in view of his disability.

It should be noted that the policy of at least 2 days in the office had not in fact been enforced but the Respondent’s position was that it would have to apply to the Claimant at some point in the future. The Tribunal found that the existence of the provision, criterion or practice was enough for the Claimant to succeed in the claim, even though it had not yet been applied to him.

The Claimant had satisfactory appraisal ratings- and yet his employer gave evidence that they had concerns about his performance when working from home. This was an unwise argument given that the evidence showed otherwise. There was also an unfounded expectation that the claimant could build up a tolerance to attending the office- something that was not based in medical evidence and ignored the reality of what a phobia actually is. Again, the ET did not take kindly to this argument advanced on behalf of the Respondent.

In terms of working from home his role was admin based and he had the necessary technology at home to perform the role (as he had during the pandemic). The Respondent claimed that he would miss out on “impromptu conversations” if not in the office, but the ET rejected this. He was experienced at his job and there were other adequate means of communication. Indeed, these were used by all staff on the 3 days they were not required to attend the office. The ET also found that perfectly adequate training could be delivered via Teams and that face-to-face interaction was not necessary. Functions such as screen sharing worked adequately for this. The suggestion that the Claimant’s welfare was harder to monitor at home was also rejected, especially where being in the office was likely to cause distress and therefore harm said welfare.

The ET also found that productivity could be monitored remotely- by keeping a log of calls etc. It accepted the Claimant’s argument that there are other ways to monitor activity rather than physically observing someone doing their job. Indeed, the argument that someone must be present to be productive is somewhat inconsistent with the suggestion that 3 days a week could be spent at home.

All of that said, we can distinguish this case somewhat by the severity of the Claimant’s conditions and the exact nature of his role. It is important to note the extent of the Claimant’s phobias and he gave evidence that he could not stand to be near other people and that the thought of entering a building with other people induced anxiety. He did not meet with people socially and was even excused from jury service on the basis of his conditions. All of his work was done via telephone and indeed in his 15 years of service the Claimant had never met a single client face to face. This is not true of most jobs and may allow other employers to apply the requirement differently.

This case was intriguing in that the Claimant did not seek any remedy beyond a declaration and therefore no compensation was awarded. He does however remain employed.

As this is an ET level decision it is not binding on other Tribunals but it is a useful reminder that the specific circumstances of an employee’s situation must be addressed in any application for flexible working. There is often a crossover with other legislation- here disability discrimination- and that should not be underestimated in the employer’s thought process. The decision to reject a flexible working requests must be justifiable and transparent (and not inherently discriminatory).