Tribunal Says Home Working Refusal Can Be Disability Discrimination

The Tribunal found that Ms Dudding was disabled because of generalised anxiety disorder, a moderate depressive episode and agoraphobia. It also found that Gravesham Borough Council knew, or ought reasonably to have known, about her agoraphobia from May 2023, after receiving occupational health advice and correspondence from her.

The council’s office-only and early-start requirements placed Ms Dudding at a substantial disadvantage. The Tribunal found that her agoraphobia and the effects of her morning medication made daily office attendance and early starts particularly difficult, and that occupational health advice had linked her return to work with reinstating hybrid working and reviewing her stress risk assessment.

Hybrid working remained available to other team members, but Ms Dudding’s previous arrangement was not reinstated. The Tribunal found that the council had failed to show that requiring office-only attendance was justified in the circumstances.

A key procedural issue was also identified. The council’s sickness absence policy had three stages, but the Tribunal found that the council moved directly from Stage 1 to Stage 3 without completing Stage 2. It said this undermined the fairness of the process because there was no clear evidence that Stage 2 was inappropriate or impracticable.

The Equality Act 2010 is the main law protecting people from discrimination at work and in wider society. Under the Act, a person may be disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Reasonable adjustments are changes an employer makes to remove or reduce a disadvantage linked to someone’s disability or health condition. Government guidance explains that employers must make reasonable adjustments to ensure workers with disabilities or physical or mental health conditions are not substantially disadvantaged in their jobs.

Acas, the public body that gives workplace advice and helps resolve employment disputes, explains that reasonable adjustments can include changes to working arrangements, working hours, duties, policies, equipment or the working environment.

In some cases, home working or hybrid working may be a reasonable adjustment. This does not mean every request to work from home must be accepted, but employers should properly consider the request, consider the employee’s individual circumstances, and assess whether the adjustment is reasonable.

This case is particularly relevant at a time when many employers are reviewing hybrid working arrangements or asking staff to spend more time in the office. An employer can usually set expectations around attendance, supervision, performance and operational needs. However, where an employee has a disability or long-term health condition, a blanket office attendance requirement may create legal risk if it puts that employee at a particular disadvantage.

Mental health conditions can fall within the Equality Act definition of disability where they have a substantial and long-term effect on normal day-to-day activities. Conditions such as anxiety, depression and agoraphobia should not be dismissed as personal preference or reluctance to attend the workplace. Where an employee raises concerns about office attendance, employers should carefully review the available evidence. That may include occupational health advice, medical information, previous working arrangements and the practical requirements of the role.

Employees may sometimes make a formal request for flexible working. They may also ask for a reasonable adjustment because of a disability. The two routes can overlap, but they are not the same. A flexible working request is a statutory process that allows eligible employees to ask for changes to how, when or where they work. A reasonable adjustment request is linked to disability discrimination law and the employer’s duty to remove or reduce disability-related disadvantage.

Acas guidance explains that where someone is asking to work from home because of a disability, they may make either a flexible working request or a reasonable adjustment request. For employees, it can help to explain why the change is needed and how the current working arrangement affects their health or ability to work. Written records can be important, particularly where concerns have been raised more than once.

For employers, the lesson is to engage with the request, keep an open mind and record the reasons for any decision. Where an employer departs from its own policy, fails to follow occupational health advice or cannot show that alternatives were properly considered, the risk of a successful claim may increase.

If you have asked for home working, hybrid working, or another adjustment because of a disability or health condition and your employer has refused, it is important to seek advice as soon as possible. The key issues are likely to include whether your employer knew about your condition, what adjustment was requested, whether alternatives were considered and whether the refusal caused you a disadvantage.

Strict time limits apply to Employment Tribunal claims; in most employment cases, the time limit is three months less one day from the act complained of, although the position can be more complex where there is an ongoing course of conduct or Acas Early Conciliation applies.