In the case of Hargreaves v Department for Work and Pensions (DWP) (judgment published in February 2019), an Employment Tribunal (ET) considered whether the refusal to allow a disabled employee flexible hours was a breach of the duty to make reasonable adjustments.
Facts
Mr Hargreaves started working for the DWP in February 2016 as a case manager. From May 2016, he was permitted to work flexible hours following a letter from Occupational Health advising that he had suffered from depression since he was 17 years old and that he would benefit from this adjustment.
In December 2016, Mr Hargreaves’ line manager moved him back to working fixed hours due to him being regularly late for work and both parties agreeing that the flexible working arrangements were not working.
Mr Hargreaves was issued with a written warning in April 2017 for high levels of sickness absence and repeated lateness.
He had a further period of sickness absence in late April and was issued with a final written warning for failing to meet the expected standards of conduct and failing to work his expected hours of work on 13 occasions. In July 2017, Mr Hargreaves informed his line manager that his medication was changing and he requested to work flexible hours again, however, this was rejected.
By September 2017, Mr Hargreaves was attending cognitive behavioural therapy and his therapist wrote to his line manager requesting that he be allowed to work flexible hours, stating that his low mood was in the severe category and his situation had changed from when he was previously allowed to work flexible hours. However, the further request was also rejected.
In October 2017, he was invited to attend a further disciplinary hearing for attending work late on 16 occasions and falsifying records of hours worked. Mr Hargreaves was subsequently dismissed in November 2017 on grounds of gross misconduct. He appealed and this was rejected.
Mr Hargreaves submitted a claim to the ET for failure to make reasonable adjustments and disability discrimination.
Law
Employers have a duty to make reasonable adjustments where a policy, practice, criteria or physical feature puts a disabled person at a substantial disadvantage compared to people who are not disabled (section 20 of the Equality Act 2010 (EqA 2010).
Decision
The ET held that the DWP failed in their duty to make reasonable adjustments by refusing Mr Hargreaves request to work flexible hours. The practice of requiring Mr Hargreaves to work fixed hours placed him at a substantial disadvantage compared to persons who were not disabled.
The ET noted that the DWP was aware of his depression and its impact on his ability to get into work for a fixed time. Both at the disciplinary hearing and the appeal, there was a failure to acknowledge that there had been a significant change in Mr Hargreaves circumstances (the change in medication and that this could help improve his condition). The Tribunal also found that the DWP had discriminated against Mr Hargreaves because his dismissal arose in consequence of his disability.
Comment
Kate Wyatt, Partner in our Employment team commented;
“The case shows that long-term health issues can fluctuate and although an adjustment might not have been appropriate in the past, failure to consider a request at a later date may result in a failure to make a reasonable adjustment.
“Employers should have practical conversations with employees about how mental health conditions impact their work and what adjustments can be made, such as amending a sickness absence policy. Adjustments should be regularly reviewed to ensure that they are appropriate and are assisting employees.
“Dismissals as a result of disability related absence will amount to discrimination where adjustments that are reasonable have not been made.”
