· News

Flexible working request clashes with reasonable adjustments in tribunal

Lines between flexible working requests and reasonable adjustments must be drawn, said director of Ariadne Associates

An employment tribunal has ruled that a Scottish government employee, whose flexible working request was denied, is classed as disabled under the Equality Act due to anxiety and fear of crowded spaces.

John-Paul Pryce was employed as an administrative case officer for the government-funded Debt Arrangement Scheme (DAS) in 2008.

He worked remotely during the height of the Covid-19 pandemic but was asked to return to the office in 2022. Following this, he submitted a flexible working request to continue working from home. This was turned down.

Simon Jones, director of consultancy Ariadne Associates, told HR magazine that the case draws lines between flexible working requests and reasonable adjustments.

He said: "This case shows the importance of separating out a request for a flexible working which might be considered a reasonable adjustment for a disability from other flexible working requests. 

“While there are valid grounds for refusing requests, where disability is involved it is vital that consideration is given to whether this would be reasonable for a disabled employee, even if an employer might refuse it in other circumstances.”

Following his request for flexible arrangements, Pryce wrote to his employer, saying: “For many reasons I find myself happier overall as working from home makes me more comfortable, productive and safe. I have no distractions of background noise, do not need to try and feign interest in what other people did with their weekend or watched on TV the previous night, etc. 

“There is no work task which I cannot do far better without the distractions of a toxic, open-plan work environment. 

“It is unfair to assume that everyone wants or needs other people around them.”

Read more: Employees unaware of new day one right to request flexible working

He mentioned that although not officially diagnosed, he thought he might have autism after taking an online Autism Spectrum Quotient test.

He also stated that he feared being exposed to other people and their germs and viruses, for the sake of his own health and that of his elderly parents.

An occupational health report in May 2022 indicated that Pryce was not likely to be classed as disabled in terms of the 2010 Act. He had been assessed by a nurse occupational adviser but said he felt was that she only focused on his physical rather than mental health.

Pyrce’s own GP then provided a letter which said: “John Pryce suffers from symptoms of agoraphobia and anxiety. I would hence advise for John to work from home if possible.”

In further correspondence with the employer, the GP said that though Pryce has a history of agoraphobia, claustrophobia and anxiety, there was no evidence of severe mental illness.

Read more: A different slant: Reasonable adjustments alone won't cut it

The tribunal heard that the impact of his anxiety on his life has been intense. He told the tribunal: “I avoid indoor spaces as I experience panic attacks when I am in an indoor setting with others, even just thinking about going into these situations bring these on. I can’t stand being near others and see them as coughing, sneezing, germ and virus spreaders.”

The judge found that Pryce has a disability based on the Equality Act 2010, due to the effect that his anxiety has on the ability to carry out day-to-day activities. In a subsequent hearing, the tribunal is due to assess whether the adjustments made for him were reasonable. 

Donal Moon, employment lawyer Moore Kingston Smith People Advisory, said that the incoming Flexible Working Act means that similar cases are likely to arise. The new act is due to come into force on 6 April.

Speaking to HR magazine, he said: “Now that employees can make two flexible working requests per year from day one of employment, it’s inevitable that we’ll see an increase in related disputes.

“Dealing with requests from employees with health conditions may involve considering if the employee is disabled, and so entitled to reasonable adjustments.”

He added that employers should ensure they have sound procedures for determining an employees’ condition.

“Employers can reduce risks by obtaining high-quality medical evidence from a specialist in the relevant condition, ideally one who can meet with the employee face-to-face. They can encourage employees to be open about their situation, by communicating clearly that this equips the employer with the necessary evidence to make informed decisions.”