Where an employer has actual or constructive knowledge that an employee is disabled, there is a positive duty to make reasonable adjustments to reduce any substantial disadvantage(s) the employee suffers when compared to a non-disabled comparator. A Scottish employment tribunal has recently considered whether allowing a disabled employee to work from home can be a reasonable adjustment.
P, a civil servant, brought a claim arguing that his employer had failed to make reasonable adjustments for his disability. In particular, he argued that the employer should have allowed him to work full-time from home as a reasonable adjustment for his disability. P suffers from agoraphobia, claustrophobia, social anxiety and mysophobia (germophobia) and these conditions cause P to avoid indoor spaces and the mere thought of returning to the office caused him to suffer panic attacks. The tribunal held that these conditions qualified P as a disabled person.
During the pandemic, the employer had allowed all its staff to work remotely. From April 2022, its policy changed to require attendance in the office at least twice a week. P argued that the employer should adjust this policy in his case to permit him to work from home full-time on account of his disability. He was given permission to do so on an interim basis, but the employer made it clear that this was temporary and that P must eventually comply with the policy and come into the office twice a week. The employer argued that permanent full-time homeworking was not a ‘reasonable’ adjustment for it to make.
The tribunal held that the employer had failed in its duty to make reasonable adjustments for P’s disability. The employer’s policy requiring attendance in the office twice weekly amounted to a provision, criterion or practice (PCP). This PCP caused P a substantial disadvantage due to his anxiety symptoms which a non-disabled comparator would not suffer. In the circumstances, the adjustment P had requested (permission to work from home full-time) was a ‘reasonable’ one. The benefit of the adjustment to P far outweighed the potential difficulty and disruption granting it could cause his employer. The tribunal made a declaration that the failure to allow P to work from home full-time was a failure to make reasonable adjustments for his disability.
The decision is a reminder to employers who embark on encouraging or requiring staff to ‘return to the office’ that they may need to make reasonable adjustments for disabled employees who would be disadvantaged by the requirement to do so.
Pryce -v- Accountant in Bankruptcy [2024] Glasgow ET 6000082/2022
Important note: ET level decisions are merely of persuasive value, and are not binding upon future ETs, but can provide a useful indicator of how certain issues are currently being dealt with within the ET.
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