Mr J-P Pryce v Accountant in Bankruptcy: 6000082/2022
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 6000082/2022
Between
Mr John-Paul PryceClaimantAccountant in BankruptcyRespondent
Before
Employment Judge J HendryMs E Campbell (instructed by Solicitor) for respondentDate 15 August 2024
JUDGMENT
The Tribunal finds that the claimant was disabled in terms of Section 6 (1) of the Equality Act 2010 from March 2000.
REASONS
[1]The claimant in his ET1 makes claims of disability discrimination and a failure to make reasonable adjustments. The reasonable adjustment contended for was to allow the claimant to work entirely from home. The respondent organisation opposed the claims. They did not accept that the claimant was disabled in terms of the Equality Act and a hearing took place on 11 January 2024 to determine whether or not the claimant was a disabled worker.[2]The Tribunal heard evidence from the claimant and from his partner, Ms McCluckie, and considered the documents contained in the joint prepared for the hearing.[3]The claimant in his ET1 indicated that he has been working from home since March 2020 “due to anxiety and extreme concern regarding crowded indoor spaces and diseases”. The Tribunal made the following findings in fact:[5]The claimant has been employed by the respondent since May 2007. His role was that of an Administrative Case Officer in the DAS department (Debt Arrangement Scheme). He was allowed to work from home/remotely during the Covid pandemic. The claimant submitted a flexible working request in March 2022 which would have allowed him to continue working from home. He did not explicitly state the reason for his request related to a disability. He was embarrassed that he found it difficult to leave his house because of a fear of being in groups of people. He framed the application emphasising the positive benefits for he respondent’s business.[6]The claimant’s line manager met the claimant on 29 March 2022 to discuss the request and following this he was referred to the respondent’s occupational health providers. The claimant also explained the advantages, as he saw it, as working from home with less distractions.[7]The respondent sent an email of 13 April 2022 asking about health conditions that the employers should know about.[8]Before the claimant was seen by occupational health, he emailed the respondent’s HR department on 4 May 2022 “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.”[9]The claimant wrote (JBp30). He wrote: “Whilst I have never an official diagnosis, I have recently an Autism Spectrum Quotion Test online and my scores came back as 43 the first I did and 41 and the second time. I think I am of an age that when I was at school, I wasn’t really anything about that and you would just be the weird kid who didn’t play well with others. It does, however, explain some things about how I find the office environment difficult and thrive when working on my own in the environment which best suits me. This is not to downplay my fears or be exposed to other people and their germs and viruses as this is still my major concern for both my own health and that of my elderly parents who are the only household I have had any contact with in the last two years. Even if people aren’t always getting extremely ill, I find it best not to be ill at all. In the last two years, I have not had one day of sickness absence.”[10]The occupational health report which was received in May 2022 indicated that the claimant was not likely to be classed as disabled in terms of the 2010 Act. The claimant had been assessed by a nurse occupational adviser. This had taken place by telephone. His perception of the hearing was that she was not interested in any mental health issues he said he had but focused on his physical health which was good.[11]The report noted that the claimant had worked from home during the pandemic. It recorded that enjoyed this as he felt that he worked better and there is less distraction while working from home. He discussed that he was worried regarding a return to the office face to face due to the risk of contracting COVID-19. It recorded that he tended go food shopping during more quiet times to reduce contact with others. The report recommended reintroducing the claimant to the workplace and indicated that the adviser was of the view that the claimant’s condition was unlikely to be considered a disability, indicating that it has not lasted longer than 12 months and it was not having a significant impact on his ability to undertake normal day to day activities. They recommended a return to work.[12]The claimant received a citation to attend for Jury duty. He felt unable to do so because of a fear of sitting in an enclosed room seated with others. He approached his GP for a letter to allow him to refuse to go. On 21 December 2022, Dr Shetty, a partner in the claimant’s GP practice, wrote a letter confirming that he was not fit to attend for jury duty (JB56). The claimant’s attendance was not insisted upon.[13]The claimant attended a GP practice run by a Dr K Ghosh and a Dr V Shetty in Ayrshire. They did not meet his GP but made contact with him by telephone. The GP provided the claimant with a letter on 1 March 2023 (JB38) which reads: “John Pryce suffers from symptoms of agoraphobia and anxiety. I would hence advise for John to work from home if possible.”[14]The employers required further information. They wrote to Dr Ghosh on 6 June 2023 (JB40). They wrote “we understand from your previous opinion that John suffers from symptoms of agoraphobia and anxiety and we would like to get a better understanding of his health and the impact any health conditions have on his work. We would normally have sought this information from the occupational health provider. However, John-Paul has not given us his consent to that. Therefore, we hope you can assist.” There was a list of 15 questions (JB42).[15]On 14 August 2023, Dr Ghosh responded: “He was last seen in our practice on 3 September 2018. Thereafter, he has not attended the practice for a face to face appointment and appointment after COVID restrictions were lifted. He has a history of agoraphobia, claustrophobia and anxiety and to this effect he was referred to our Mental Health practitioner and he was again assessed over telephone with a provisional diagnosis of social anxiety and mysophobia was made. I have spoke to John a few times over the phone and my last contact with them was on 10 August 2023 when he confirmed that he continued to work from home and he carried out his day to day business online and he conducts meetings by Microsoft Teams. He does shopping online. However, he does go out for shopping to open market places.”[16]Mr Ghosh further wrote: “He has no evidence of any severe mental illness. His anxiety has increased due his employer asking him to return to work on site rather than work remotely. He believes that he has explained to a mental health practitioner as well and to me that he does not wish to engage in any sort of therapy including cognitive behaviour therapy which may help him to return to a more active social live. He doesn’t want any sort of medical treatment in the form of medication or behavioural therapy. He has mentioned to a Mental Health practitioner that he believes that in protecting himself and his family from germs. He denied any excessive obsession with cleaning or handwashing. He had mentioned that before the pandemic, he managed working on site and engaged in social activity with no health issues and I believe before the Pandemic, his belief in protecting himself and family from germs has made him stronger. He feels that he can do his job as efficiently remotely as he could have done on site… I can say John does not suffer from any significant severe mental illness. He has social anxiety and agoraphobia and he feels safe working from home. His symptoms and beliefs have worsened since the outbreak of the Pandemic.”[17]On 9 June 2022, the claimant was advised that the flexible working request had not been accepted. The claimant believed that the respondent had not taken account or sufficient account of his mental health difficulties.[18]The respondents acknowledged the letter on 4 September 2023 (JBp47) and has asked for further information from the claimant’s GP. Dr Ghosh responded on 2 October 2023: “As explained in my previous letter, John worked from home just before the COVID-19 outbreak and he avoids going out apart from essential times like looking after his parents or doing the grocery shopping but only spending minimal time outdoors. He was referred to a mental health practitioner and she confirmed that he has social anxiety and mysophobia. He has got no significant mental health illness, however, he is extremely anxious at present because his employers were putting pressure on him to work on site. He denies any other mental health difficulties and believes that he is protecting himself and his family from germs.” He indicated that he was a GP and not a psychiatrist.[19]The claimant’s partner responded to the questions that had been asked of the GP in a document dated 28 November 2023 (JB52) which set out the impacts she observed on the claimant at the start of the pandemic. She wrote: “then the pandemic hit in 2020 and he (along with everyone else) became obsessed with avoiding being near people and handwashing. His close friend lost both parents to COVID. JP couldn’t make himself go to support him due to his current condition, even after 30 years of friendship, he couldn’t make himself go although most people have gradually gone back to normal i.e. mixing with others and not being concerned about catching germs, JP has stayed in that ‘on edge state’.”[20]The claimant is unable to enter hospitals because of the sickness and germs he believes he will encounter there. The claimant raised Tribunal proceedings.[22]The claimant completed a disability impact statement (JBp30 onwards). He stated that he suffered from severe anxiety and agoraphobia. He described this in the following way: “this means 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. On a few occasions I have had to go into indoor spaces, I can only spend a few minutes before I start sweating, get angry about anyone remotely coming close to me and feel nauseous and feel the need to leave as soon as possible. I can’t stand being near others and see them as coughing, sneezing, germ and virus spreaders.”[23]The claimant explained that his mother was also agoraphobic and had OCD She had brought him up very focused on cleanliness. As a child, he was frightened of germs, viruses and illnesses.[24]The claimant explained that as an adult he had these underlying fears and concerns but that he would disguise his reactions to being in the present of illness and germs. He tried to live life normally but certain events impacted on his mental health. He points specifically to the emergence of the COVID-19 pandemic and a serious bout of COVID that affected him in March 2020. He was recuperating in bed and thought he was going to die and as he recovered, he became very focused on the dangers of the virus.[25]Since March 2020, the claimant no longer socialises with others. He stopped playing table tennis with friends. This was an activity that he had enjoyed. He did not invite people to his house. He stopped attending concerts and going on holidays. He would become fearful in the presence of others and he would sweat and suffer panic attacks if he was in a situation where other people were close by. He contacted his GP when he was cited to attend as a juror. The GP gave him a letter indicating that he was too anxious to attend a jury trial. The claimant does not visit other people. He visits his parents daily as they live very close by and assists them as they are elderly. Witnesses[26]I found the claimant to be a credible and reliable witness who answered questions generally in a straightforward manner. He was clearly upset and emotional at points discussing the impact of his condition and how his colleagues and others would react to his phobia. He had minimised it’s influence on him and had tried to justify working from home for business reasons. I found the claimants partner both credible and reliable. It was clear that his condition had impacted their social and family life and that his ability to interact with others because of a fear of contagion of some sort and his fear of dirt or germs had steadily grown more marked. Submissions[27]Ms Campbell first of all reminded the Tribunal of the definition of disability contained in the Ac and the questions the Tribunal had to answer. She referred to the case of Goodwin v Patent Office (1999) IRLR 4 (EAT), in which it was established that the Tribunal should ensure that each step is considered separately and sequentially. She turned to the case of McNicol v Balfour Beatty (2002) IRLR 711 and the guidance that the word impairment bears should be its ordinary meaning. In respect of mental impairment was accepted that the condition does not have to be clinically well-recognised. Nonetheless, the case of Royal Bank of Scotland v Morris UKEAT/0436/10 in which the E.A.T emphasised the importance of expert medical evidence where an alleged disability takes the form of “depression or a cognate medical impairment.” In that case it was stated that: “the fact is that while in the case of other kinds of impairment the contemporary medical notes or reports may…give a tribunal a sufficient evidential basis to make common-sense findings, in cases where the disability allegedly takes the form of depression or a cognate mental impairment, the issues will often be too subtle to allow it to make proper findings without expert assistance.” (para 63). The Tribunal went on to state that “the existence or not of a mental impairment is very much a matter for a qualified and informed medical opinion”. (para 55)[28]The Tribunal must also consider whether the impairment has an adverse effect on day to day activities. The solicitor made reference to the assistance provided by the Guidance. She then turned to discuss the evidence. The Tribunal should look at what an employee cannot do or can do only with difficulty. The Guidance to the Act provides that account should be taken of how far a person can reasonably be expected to modify his behaviour, for example through use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day to day activities.[29]She submitted that the onus is upon the claimant to establish that throughout the relevant period he met the statutory definition set out in section 6 of the Act by leading evidence in connection with the impairment itself, the adverse effects which it had upon his ability to carry out normal day to day activities and the substantial and long term nature of the adverse effect. In my submission, the evidence before the Tribunal is insufficient to discharge that onus. The Tribunal was then directed to the letter from the claimant’s GP dated 2 October 2023. The claimant’s mental health practitioner is stating that the claimant has no significant mental health illness. There is no mention of a diagnosis of agoraphobia. The mental health practitioner assessment and the GP assessment were both conducted by telephone assessment The claimant has not attended his GP since 2018. The claimant has told his GP over the telephone about his symptoms and the GP has repeated these.[30]The Tribunal lacks any medical evidence showing how longstanding the asserted conditions are. The claimant has not produced any evidence from a mental health specialist, such as a consultant psychiatrist.[31]The claimant’s Occupational Health (OH) report (p35) made no mention of any health conditions. Anxiety and agoraphobia are not mentioned. The OH practitioner did not consider the claimant to have a disability. The claimant says she focussed on his physical health. It is submitted that this is improbable, given the function of OH is to pick up on health conditions and they were aware issues around his isolation, given the practitioner mentions reintegration into society. The claimant was asked directly in an email of 13 April 2022, whether he had any medical conditions (p33). He mentioned a speculative autism diagnosis in his response (page 32) but made no mention of severe anxiety or agoraphobia.[32]The letter from the GP dated 14 August 2023 (pages 44 - 46) states that there was a “provisional diagnosis of social anxiety and mysophobia” made by their Mental Health practitioner. This diagnosis was made through a telephone assessment by a Mental Health Practitioner, who did not actually meet the claimant in person. We lack any explanation of the provisional nature of this diagnosis. I would submit it is reasonable to assume that this diagnosis is not certain.[33]The Tribunal should place little weight on the evidence led. It does not show an impairment in the claimant’s ability to carry out day to day activities. He goes out to the shops, works, is able to cook, clean and do normal household activities. He can go visit and look after his parents and in the words of his GP, “he feels fit and well” (p45).[34]The claimant accepted that he does go out shopping to open marketplaces and food shopping. It is submitted that if he was truly suffering from severe anxiety and agoraphobia which had a substantial impact on him, then he would avoid attending shops. Similarly, the second letter from the doctor dated 2 October 2023, states that “he avoids going out apart from essential times”. It is clear that he does leave the house for activities he considers to be essential, such as shopping and visiting his parents.[35]The GP letters states that the Claimant has no evidence of any severe mental illness (45) and then later on “I can say John does not suffer from any significant severe mental illness.” In my submission, this means that any adverse impact from the asserted impairments is minor or trivial. Furthermore, it states that “before the pandemic, he managed working on site and engaged in social activity with no health issues” (p45). This shows that for thirteen years, the Claimant has managed to work and engage socially as normal. The GP in the letter dated 2 October 2023 (pages 50 – 51), states that: “he has got no significant mental health illness, however, he is anxious at present because his employer is putting pressure on him to work on site. He denies any other mental health difficulties.” The Tribunal is invited to find that any anxiety is situational and due to being asked to give up home working full time. It is not a wider disability. In fact, the claimant has actually denied any mental health difficulties beyond being asked to return to the office. His reasons for not returning to the office are based on fluorescent lighting and avoiding small talk with colleagues. Discussion and Decision[36]The Equality Act 2010 (EA) provides as follows: Disability (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.[37]I also considered the Government Guidance on matters to be taken into account in determining questions relating to the definition of disability (“Guidance”). I noted that the question of “mental impairment” is to be given its ordinary meaning and can include mental health conditions such as anxiety, and mental health illnesses such as depression and PTSD. A phobia is defined in most dictionaries as being a mental illness that relates to an “irrational” fear of something.[38]The Guidance says this: Meaning of ‘impairment’ A3. The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects. A4. Whether a person is disabled for the purposes of the Act is generally determined by reference to the effect that an impairment has on that person’s ability to carry out normal day-to-day activities[39]The Equality Act 2010 (“Act”) provides that “substantial” means more than minor or trivial, and that long-term means that an impairment must have lasted for at least 12 months or be likely to have lasted for at least 12 months, that being determined at the date of the alleged discriminatory act or acts and not the date of the hearing.[40]The question of what are “normal day-to-day activities” must also be assessed by reference to the ordinary meaning of those words. The Guidance notes that they are things that people do on a regular or daily basis and can include work related activities such as interacting with colleagues. The Employment Appeal Tribunal (“EAT”), in Patterson -v- The Commissioner for the Police of the Metropolis [2007] ICR 1522, noted that normal day-t- day activities must be interpreted as including activities relevant to professional life, but the EAT also clarified. in Chief Constable of Dumfries and Galloway Constabulary -v Adams [2009] ICR 1034, that that involves activities found across a range of employment situations.[41]In the case of the Chief Constable of Dumfries & Galloway Constabulary v Adams [2009] IRLR 62 at the EAT: “What we take from the court’s use of the term ‘professional life’ is that when assessing, for the purposes of section 1 of the 1995 Act, whether a person is limited in their normal day-today activities, it is relevant to consider whether they are limited in an activity which is to be found across a range of employment situations. It is plainly not meant to refer to the special skill case such as the silversmith or watchmaker who is limited in some activity that the use of their specialist tools particularly requires, to whom we have already referred. It does though, in our view, enable a tribunal to take account of an adverse effect that is attributable to a work activity that is ‘normal’ in the sense that it is to be found in a range of different work situations. We do not, in particular, accept that ‘normal day-today activities’ requires to be construed so as to exclude any feature of those activities that exists because the person is at work, which was the essence of the first ground of appeal. To put it another way, something that a person does only at work may be classed as ‘normal’ if it is common to different types of employment.”[42]In Sobhi v Commissioner of Police of the Metropolis UKEAT/0518/12BA, drawing on Paterson, the EAT observed at [18]: “You look to see whether the impairment which the worker has may hinder their full and effective participation in professional life on an equal basis with other workers.” And at [19]: “…a person must be regarded as a disabled person if their condition has a substantial and long-term adverse effect on any activity of theirs which relates to their effective participation in professional life.”[43]I noted the guidance given in the well-known case of Goodwin v Patent Office (1999 ICR 302) in which Mr Justice Morrison President sets out four questions for the Tribunal to address: 1) The impairment condition Does the applicant have an impairment which is either mental or physical? (2) The adverse effect condition Does the impairment affect the applicant's ability to carry out normal day to day activities…. and does it have an adverse effect? (3) The substantial condition Is the adverse effect (upon the applicant's ability) substantial? (4) The long-term condition Is the adverse effect (upon the applicant's ability) long-term?[44]This is an unusual case and the claimant on whom the onus lies to demonstrate he is disabled is not particularly well assisted by the medical evidence he has brought. The respondent’s solicitor criticises the lack of any face to face consultation although their Occupational Health Report is open to the same criticism.[45]I mean no criticism of the claimant’s GPs. They are no doubt very busy and specialists in mental impairments such as psychiatrists and psychologists. Nevertheless what we have is not wholly unhelpful to him. In passing one possible reason for the relative lack of detail is that the claimant did not attend his GP or speak to the Mental Health Nurse in person because he has a deep rooted fear of interacting with such people in venues where he is likely to encounter ill people and be exposed to germs and viruses.[46]The documentation produced shows that in December 2022 he had himself released from Jury Duty. His GP wrote that he was unfit to attend. The claimant indicated that he had a fear of being sat in close proximity to other jurors in an enclosed and busy courtroom. This he claims was the source of his anxiety. Little weight can be put in the letter itself other than to perhaps indicate that the fears the claimant complains of are not that recent and there appears to be a common thread. The claimant gave the Tribunal a history of the evolution of his condition from childhood until it became more pronounced after he had experienced a severe bout of Covid. This appears entirely credible. The second report from the other GP mentions “agoraphobia” or a fear of open or crowded places.[47]By August 2023 Dr Ghosh is referring the impact of the pandemic on him and a provisional diagnosis of “social anxiety and mysophobia” made by the practice Mental Health professional. Mysophobia being an extreme of irrational fear of dirt and contamination. The report says the claimant does not have a mental severe mental illness. This phrase is not explained and runs contrary to the disabling symptoms narrated. It is unclear whether the disabling effects are said not to be severe or the phobia itself not to be severe or how this observation fits with the statutory test for disability contained in the Equality Act.[48]Ms Campbell quite understandably put some emphasis on the guidance given to Tribunals in the case of Royal Bank v Morris. That case drew heavily on the case of Richmond Adult Community College v McDougall (2008) IRLR 227 and cites the following passage: “The fact is that while in the case of other kinds of impairment the contemporary medical notes or reports may, even if they are not explicitly addressed to the issues arising under the Act, give a tribunal a sufficient evidential basis to make common-sense findings, in cases where the disability alleged takes the form of depression or a cognate mental impairment, the issues will often be too subtle to allow it to make proper findings without expert assistance. It may be a pity that that is so, but it is inescapable given the real difficulties of assessing in the case of mental impairment issues such as likely duration, deduced effect and risk of recurrence which arise directly from the way the statute is drafted”.[49]There are circumstances in which medical evidence is critical. For example, it would be very difficult without medical evidence for a claimant had to demonstrate that the mental condition founded upon was likely to last more than 12 months or was likely to recur. However, in this case the factual position is that the symptoms of the claimant’s condition have had a disabling effect on his for more than 12 months. This is not a case where I am of the view that the issues are ‘‘too subtle’’ to determine without further medical evidence. The claimant has an entrenched phobia and whatever the label put on these symptoms the impact is clear. I accept that he has a mental impairment.[50]The claimant lives a very isolated life. His wife’s evidence which I accept is that this has become progressively worse over the last two years. He seldom ventures from the house. He would not let a colleague into his house when they delivered a laptop to him insisting that the exchange took place in the open air. Whatever the label put on such behaviour, which is in no way voluntary, the phobia he has which drives his behaviour has an adverse effect. That effect clearly has a substantial effect on the claimant’s ability to carry out day to day activities principally being in the close company and interacting with others. This has been the position since March 2020.[51]This hearing was a preliminary hearing and not a final hearing where the reasonableness of the adjustments contended for are assessed. However, it is only fair to caution the claimant that his position is a radical one namely that he should not be required in the future to attend work for any purpose. It must also be clear to him that his condition is not improving and that this impacts on his daily life. He said that he would not take treatment as he was fearful that he would be prescribed the sort of medication his mother was prescribed many years ago which he believed was detrimental to her. I am sure that there have been many advances in such medications which alleviate anxiety and might with other therapies address his phobia.[52]I would urge him to contact the counselling service which I understand the respondents operate and discuss what assistance is open to him which might ameliorate situation he currently finds himself in. J Hendry[1]As noted above, oral reasons for our judgment were given in the presence of the parties or their representatives at the end of the hearing. These written reasons are provided under rule 62(3) following the respondent’s request dated 23 August 2024. Our decision was unanimous and so was our reasoning. Our assessment of reasonableness was informed partly by the practical industrial experience and specialist expertise of the non-legal members of the Tribunal. Introduction and background[2]This case concerned a narrow but important question of reasonable adjustments. The respondent is based in Kilwinning, Ayrshire. It is the Scottish government agency responsible for administering the process of personal bankruptcy and corporate insolvency. Its functions also include administering the Debt Arrangement Scheme (“DAS”). The claimant lives in Ardrossan and has been employed by the respondent since 14 May 2007 as a “DAS Admin Case Officer”. He continues to be employed in that role. He has been working remotely from home since the early days of the Covid-19 pandemic in 2020.[3]In a claim form received by the Tribunal on 9 December 2022 the claimant made a complaint of disability discrimination. The scope of this hearing was therefore limited to allegations of discrimination which were within time on 9 December 2022. There has not been any Prakash-type amendment to add allegations of discrimination post-dating the claim form, so this judgment will be of limited use to the parties if they seek a determination of their rights and obligations now, or in the future. The relevant circumstances might already have changed. They might well change in the future. The reasonableness of a particular adjustment might now be assessed in a different factual context. Summary of the claimant’s case[4]As noted above, claimant has worked entirely from home since early 2020. The respondent’s policy on homeworking has evolved since the end of the Covid-19 pandemic. Since mid-April 2022 it has been that employees should work in the office for a minimum of 2 days each week, with freedom to work from home for up to 3 days each week. The claimant’s case is that he should be permitted to work entirely from home as a reasonable adjustment for his disability. Summary of the respondent’s case[5]The respondent’s initial argument was that it would not be reasonable for the claimant to work from home for 100% of his working time, other than on an interim or temporary basis, and that the claimant must eventually meet the expectation of working in the office for 2 days each week. During the hearing the respondent’s sole witness appeared to concede some ground, accepting that it might be reasonable for the claimant to work in the office for 1 day each week, working at home for the rest of the time.[6]The essence of the respondent’s case is that some minimum amount of office working generates benefits both for clients and for staff. The respondent argues that the disruption and non-financial cost of the proposed adjustment is too great for it to be reasonable.
Issues
[7]A different Tribunal had already found that the claimant was a disabled person for the purposes of the Equality Act 2010. Many other potential issues were now agreed. The disputed issues were narrow. Type of complaint[8]By the start of the final hearing, only one type of disability discrimination was alleged: a failure to make reasonable adjustments contrary to sections 20 and 21 of the Equality Act 2010. Disability and its effects[9]On 11 January 2024 EJ J Hendry found as a preliminary issue that the claimant was a disabled person for the purposes of section 6 of the Equality Act 2010. The judgment records that the claimant had a history of agoraphobia, claustrophobia and anxiety. The claimant had a current diagnosis of social anxiety and mysophobia. Mysophobia is also known as “germophobia” and can be summarised as an irrational fear of dirt, contamination or infection.[10]The claimant avoids indoor spaces because he experiences panic attacks when indoors with others. Merely thinking about the prospect of being indoors with other people can bring on a panic attack. That was vividly illustrated during the hearing when the claimant became extremely distressed when required to contemplate a phased return to the office and how it might affect or benefit him. On the few occasions that the claimant has had to enter indoor spaces with others he was able to spend no more than a few minutes there before starting to sweat, becoming angry about anyone coming even remotely close to him and feeling a need to leave as soon as possible. The claimant summarises, “I can’t stand being near others and see them as coughing, sneezing, germ and virus spreaders”. Apart from his elderly parents, the claimant does not visit other people and was excused jury service because his GP wrote to confirm that he was too anxious to attend a jury trial. Knowledge of disability and its effects[11]On behalf of the respondent, Ms Campbell helpfully indicated that the respondent did not rely on the defence of lack of knowledge in paragraph 20 of Schedule 8 to the Equality Act 2010. Provision, criterion or practice (“PCP”)[12]The relevant PCP was the respondent’s expectation that staff should work in the office for at least 2 days each week rather than from home.[13]While the respondent has not so far sought to enforce its normal policy in the claimant’s case and has allowed the claimant to work from home as an interim measure (however lengthy), the respondent’s position is that its normal policy should apply to the claimant at some point and that it is something that he should work towards.[14]It does not matter that the respondent’s policy has yet to be applied to the claimant in a strict sense. It can still be a PCP for the purposes of a reasonable adjustments claim. Cases such as General Dynamics Information Technology Ltd v Carranza [2015] ICR 169, EAT establish that a mere expectation, as opposed to a strictly applied rule, can be sufficient to constitute a PCP. Substantial disadvantage[15]The respondent conceded that the PCP put the claimant at the necessary substantial disadvantage. For this purpose, “substantial” means only “more than minor or trivial” (s.212(1) of the Equality Act 2010). That concession was properly made, because it was well-established by the evidence that the claimant would suffer greatly increased anxiety if he were to be required to work in the office to any extent at all, or even to give it serious contemplation. As the claimant put it: “it places me in an environment which would cause me extreme distress, anxiety and panic” “I cannot deal with being stuck indoors with people for any extended lengths of time, I feel sick, my head pounds and I have a compulsion to get away…” “I only feel safe in my house because I know I don’t allow people into it so as far as possible it is germ free, and anything that comes in (like letters or deliveries) is anti-bacterial wiped and then I leave it lying for a day or two” “I don’t understand how the respondent thinks I could concentrate and do my work.”[16]Very obviously, a non-disabled comparator would not experience those effects.
Remedy
[17]The claimant did not seek any compensation if successful. The remedy sought was limited to a declaration of discrimination and, initially, a recommendation. Once we had given our judgment on liability the claimant no longer sought a recommendation.
Evidence
[18]We heard from just two witnesses: the claimant and Miss Donna Grady, Debt Administration Team Leader, which is the level above that of the claimant’s line manager. We found them both to be honest and credible witnesses and we did not think that either of them sought to mislead us.[19]We found the claimant to be an especially compelling witness when he described the effects of his disability and the effect on him of an expectation that he should attend the office. It was not suggested in cross-examination that he had misrepresented or exaggerated those effects in any way. We could see the claimant’s fear and distress as he gave his evidence.[20]Although we thought that both witnesses were honest, that did not mean that we always accepted that their honest views had an objective basis in the evidence. For example, we found that Miss Grady’s concerns about the claimant’s performance were at odds with his entirely satisfactory appraisal ratings. Additionally, Miss Grady did not appear to have appreciated that any amount of office working at all would cause the claimant to experience extreme distress, anxiety and panic. See seemed to think that the claimant could simply build up his tolerance from a starting point of one hour a week in the office without adverse effects. There is currently no medical support for that view and it fails to acknowledge the reality of the phobias with which the claimant has been diagnosed.[21]We were also provided with a well-organised joint file of documentary evidence running to 118 pages. We were not referred to all of it.
Relevant facts
[22]Many of the relevant facts were either agreed or found by EJ Hendry at the preliminary hearing on disability status. See in particular the passages above dealing with the PCP and the substantial disadvantage to which it put the claimant. The claimant thought that it would be quite impossible for him to comply with the respondent’s hybrid working policy. That is also our finding.[23]Where facts were disputed we made our findings on the balance of probabilities, in other words, a “more likely than not” basis. If we thought that something was more likely to be true than untrue, then for the purposes of our decision it was deemed to be true. That is the binary approach to fact finding adopted in almost all civil litigation. Working arrangements and internal procedures[24]The claimant commenced employment with the respondent on 14 May 2007. He is therefore an extremely experienced member of staff. He works in a team made up of 5 administrative staff (of whom he is one) and 5 case managers, who act as line managers to the administrative staff. Ms Grady, the DAS Team Leader, sits above the case managers in the hierarchy.[25]In March 2020 the claimant contracted Covid-19 and became very ill. He found that to be an extremely traumatic experience.[26]The claimant performs a computer-based administrative role. Prior to the Covid-19 lockdown, the claimant had worked in the office for all of his working time and did not work from home at all. During lockdown, he worked entirely from home. The respondent provided the equipment necessary for him to do so. Part of the claimant’s role involved answering telephone queries. The respondent provided a work mobile phone so that he could answer those calls at home. The respondent also provided a system for video communication which was eventually superseded by the well-known Microsoft Teams product. The claimant’s firm belief was that all his duties could be performed from home and that he had already been provided with the necessary technology to do so. We accept that evidence. We will consider how well the claimant was able to perform those duties below.[27]In about April 2022 the respondent asked all staff to return to the office for 3 days of each working week. In anticipation of that change, on 19 March 2022 the claimant made a flexible working request, asking that he be allowed to work entirely from home on a permanent basis. That led to a meeting with Donna Grady on 29 March 2022, which led to a referral to Occupational Health (“OH”). The claimant was permitted to continue to work from home until a decision was made on his flexible working application. The OH report dated 18 May 2022 recommended that the claimant should be reintroduced to the office gradually, eventually building up to 3 days in the office which was consistent with the “hybrid working plan” operated by the respondent at the relevant time. As noted above, the policy has since changed so that staff are expected to work in the office for a minimum 2 days each week rather than 3. Against that background, Donna Grady rejected the flexible working request on 9 June 2022. Her decision was confirmed on appeal on 13 July 2022.[28]The claimant lodged a grievance on 9 September 2022. While that appeal was pending the respondent offered another OH referral on 14 October 2022. By then, the claimant had commenced ACAS Early Conciliation. The claimant’s grievance was rejected on 24 November 2022, and the decision maker recommended a further OH referral. At that stage the claimant did not have his current diagnoses of misophobia or agoraphobia The claimant appealed the grievance decision on 6 December 2022 and this claim was started when the Tribunal received a claim form on 9 December 2022. Communication with colleagues[29]The claimant has used Microsoft Teams to communicate with colleagues. He finds it effective and we accept his evidence on that point. While the respondent placed emphasis on the fact that the claimant would miss out on “impromptu conversations” with colleagues if he were not physically present in the office, we think that the importance of that possibility has been overstated for the following reasons. Firstly, the respondent is prepared to accept arrangements under which all staff at the claimant’s grade are permitted to work from home for up to 3 days each week anyway, which suggests that facilitating impromptu conversations in the workplace is not of critical importance. Secondly, if there were a need to discuss anything important, or if impromptu discussions led to learning points or other issues of significance, then that could easily be the subject of a more formal communication, either by email or through meetings held using Microsoft Teams. The claimant receives other work communications by email and joins weekly team meetings by using MS Teams. If he wants to contact his line manager in the meantime, the claimant uses a phone app or video conferencing via Teams. Thirdly, we accept the claimant’s evidence that, as an experienced employee, his job mostly involves working through jobs on a rota basis and completing them on his own, unless for some reason he requires help. If he needs it, he can request help by email or by Teams. Finally, messaging groups have been set up so that colleagues can share information and ask questions. The claimant’s uncontradicted evidence was that those groups are used both by him and by his colleagues. That represents a partial substitute for the impromptu conversations and queries that might occur in the office. Training of colleagues[30]In cross-examination it was put to the claimant that some training of colleagues that he had carried out remotely had to be redone, the implication being that the mode of delivery had reduced the quality of that training.[31]We do not accept the general proposition that training carried out by sitting next to someone is necessarily any more effective than training done remotely, for example by Microsoft Teams. It is within the experience of this Tribunal that provided the trainer and the trainee both have a minimum level of skill with Teams (or similar software) then perfectly effective training can be delivered. The claimant explained that he was essentially training someone in the operation of a computer system, which could be done efficiently by using the “screen share” function on Microsoft Teams. We accept that evidence.[32]The more important considerations are the content of the training, the skill of the trainer and the aptitude and experience of the trainee. If it is correct that some training conducted by the claimant had to be re-done (an issue which was not raised with him at the time) then we are not satisfied that the remote delivery of that training was to blame. There could be other causes and the respondent has not led evidence that would allow us to conclude on the balance of probabilities that the mode of delivery had been a contributory factor. The claimant was aware of training done face to face (or more accurately, side by side) which had to be redone too. Managing the claimant’s welfare[33]It was also suggested to the claimant that it was more difficult to monitor and to support his welfare if he worked entirely from home. We do not accept that proposition. A skilled and diligent line manager should have no difficulty enquiring after, monitoring and supporting the welfare of someone working remotely by using standard methods of communication such as the phone, email and video conferencing. We think that the respondent has overstated the unique welfare benefits of observing an employee in the workplace, especially if physical presence in that workplace is likely to cause the employee distress. The claimant has regular, scheduled, monthly meetings with his line manager via Teams. We think that is likely to be both effective and sufficient. If the respondent’s aim is to monitor and support the claimant’s welfare, then it must allow for the fact that physical presence in the office would harm the claimant’s welfare. Contact with clients[34]The clients of the service are those who are seeking or who are already subject to a Debt Arrangement Scheme. In all the years that the claimant worked wholly from the office (2007-2020) he was never asked to speak to a client who had attended the office in person. We find that there is no business need for the claimant to be in the office to meet clients. Contact is by phone, and that can be done just as well remotely. Some highly satisfied clients have written to the claimant’s manager to say that they were getting a good service, and those letters have been passed to the claimant. The claimant dealt with some of those clients remotely.[35]It was suggested in cross-examination that the claimant’s managers could not tell how often he was answering the phone, or whether he was answering it at all, when he worked from home. It was unclear whether the respondent had genuine concerns about the claimant’s diligence or whether it was putting forward a theoretical need that might arise in the future. Either way, we see no objective basis for that concern. The respondent has other ways of monitoring the claimant’s productivity and if it was concerned to know how many calls he had answered, it could simply ask him to keep a log. That could then be checked against the case records. We also note that the implication of the respondent’s current flexible working policy is that it might only be able to monitor call handling for 40% of the working week of any employee, disabled or not. On that basis we find that it is a factor of limited weight, and that there are effective ways of monitoring the claimant’s call activity other than observing him taking calls in the workplace. General productivity and performance[36]The claimant believes that he has worked productively from home for more than 4 years now. We were not shown the full appraisal documentation and the bundle contained just a single page from a single appraisal. However, oral evidence established that the claimant had received a rating of “effective” in his 2024 appraisal, “effective” in his 2023 appraisal and “highly effective” in his 2022 appraisal. We were not shown the narrative sections of any of those appraisals, but we proceed on the basis that if they had contained any relevant concerns about the claimant’s performance they would have been produced and shown to us. The claimant is not on a performance improvement plan and Donna Grady told us that she had not even contemplated one.[37]While Donna Grady told us that she thought that the claimant was “not doing the full array of work”, she was nevertheless comfortable counter-signing for an “effective” grade in the claimant’s two most recent appraisals and for a “highly-effective” grade in 2022, the appraisal which was the most recent when these proceedings commenced.[38]In cross-examination the suggestion was made to the claimant that his relationship with stakeholders was not as good as that of his colleagues. The claimant firmly rejected that suggestion. In this context “stakeholders” means money advisors and creditors. Donna Grady accepted that neither she nor the claimant’s line manager had made any comments in the narrative sections of the appraisal forms suggesting that they had concerns about the claimant’s “stakeholder engagement”.[39]We find that there were no serious concerns about the claimant’s performance in general or “stakeholder engagement” in particular. If there had been, then they would have been recorded at the time. There was a formal process for doing so and the opportunity was not taken. Donna Grady confirmed that managers complete appraisal documentation honestly. We do not accept her evidence that the claimant only “scraped by”. She did not record any comments consistent with that view in the appraisal. The claimant’s line manager, who was in the best position to comment on the claimant’s performance, did not do so either. We were not persuaded by Donna Grady’s analysis that, “…if I was writing his full report, I would put it in, but unfortunately it was a new line manager”. As the counter-signing manager she had the power, authority and duty to make any relevant comments. The claimant has never previously been told that he was showing a problematic lack of stakeholder engagement.[40]For those reasons, we do not accept the respondent’s evidence that the claimant’s performance and stakeholder engagement has declined while working entirely from home. Even if it had done so, it would remain to be established that working from home was the cause or a contributory factor, rather than a coincidence. The claimant was recently bereaved, an event which he said had “shattered” his life.
Legal principles
[41]Since the only live issue was the reasonableness of the proposed adjustment, it would be disproportionate to set out in full detail the directions in Environment Agency v Rowan [2008] IRLR 20, EAT and Secretary of State for Work and Pensions v Higgins [2014] ICR 341, EAT.[42]It is well-established that reasonableness must be determined objectively, and that in some cases the duty to make reasonable adjustments may entail more favourable treatment of a disabled person, possibly extending to affirmative action or positive discrimination. The policy objective is to achieve substantive equality and to assist integration into the working environment. The difficulties faced by disabled workers are very different from those experienced by people subjected to other forms of discrimination. See for example:a. Archibald v Fife Council [2004] ICR 954, HL, paragraph 47 (Lady Hale);b. Griffiths v SSWP [2017] ICR 160, CA, paragraphs 15-16 (Elias LJ);c. Chief Constable of South Yorkshire Police v Jelic [2010] IRLR 744, EAT, paragraph 41 (Cox J).[43]We have considered paragraphs 6.23 to 6.29 of the EHRC Code of Practice, a section which is headed “What is meant by ‘reasonable steps’”. Paragraph 6.28 includes a non-exhaustive list of potentially relevant matters which largely replicates the list once contained in section 18B of the Disability Discrimination Act 1995.• The extent to which taking the step would prevent the effect in relation to which the duty is imposed.• The extent to which it is practicable for the employer to take the step.• The financial and other costs which would be incurred by the employer in taking the step and the extent to which it would disrupt any of his activities.• The extent of the employer’s financial and other resources.• The availability to the employer of financial or other assistance with respect to taking the step.• The nature of the employer’s activities and the size of his undertaking.[44]In relation to cost, Cordell v Foreign and Commonwealth Office [2012] ICR 280, EAT (Underhill P and members), held that cost was central to reasonableness, but that a decision about how much it was reasonable for an employer to spend could not be a product of “nice analysis”. There was no objective measure by which the disadvantage to the employee of not making the adjustment could be balanced against the cost to the employer. Ultimately, it was an ‘industrial jury’ question.[45]Although Cordell was concerned with financial costs, we think that an equivalent approach must be appropriate in a case where non-financial costs and disruption are central to the assessment of reasonableness. It is for the Tribunal to make a judgment as to what it considers right and just. Reasoning and conclusions[46]The respondent concedes that the duty to make adjustments arose, and the sole issue for us is the reasonableness of the proposed adjustment of allowing the claimant to work entirely from home, free of any obligation to attend the office at all.[47]We will begin by considering the relevant disadvantage, a question which must be approached quantitatively as well as qualitatively. The disadvantage to which the claimant was and is put by the PCP is striking. If he were required to attend the office then he would experience severe distress, panic and anxiety. He would also be unable to concentrate on his work. We do not think that the claimant would be able to function effectively in the office at all. Not only would that be extremely unpleasant for him, but it could also cast doubt on the viability of his continued employment.[48]That can be contrasted with the position if the adjustment were to be made, which is that the claimant would be able to continue to perform his role to a standard which the respondent has repeatedly graded “effective” or “highly effective”. A tribunal must always consider the efficacy, or likely efficacy, of an adjustment. In this case the proposed adjustment would be extremely beneficial because it would almost entirely remove the disadvantage to which the claimant was put by the combination of the PCP and his disability.[49]Against that, we must consider the cost and difficulty of making the proposed adjustment. The respondent’s arguments are not really about the financial costs of making the proposed adjustment. We heard no evidence about that. The respondent is concerned about the disruption, difficulty and non-financial costs. While the respondent’s concerns are all of a type which might well be relevant to reasonableness in many cases, we find that many of them have been overstated in this case, for reasons given above.[50]Stakeholder engagement sessions have customarily been done in the office, apparently at the request of those stakeholders. However, we do not think it would be impossible or difficult for there to be stakeholder engagement based on interacting with the claimant remotely, for example by means of Microsoft Teams. While that might not be what stakeholders have requested, we heard no evidence to suggest that it had ever been offered to them, nor evidence to show that it would be less effective. The claimant has never previously been told that he is showing a problematic lack of stakeholder engagement. We think that the absence of any documented concerns of that sort in the appraisal process is telling. That suggests to us that the alleged lack of stakeholder engagement is not a very serious problem if it is a problem at all. We also note that 9 out of 10 members of the team (or 4 out of 5 if the analysis is confined to the claimant’s own grade) are still available to offer office-based stakeholder engagement sessions. Sometimes, it can be reasonable to transfer part of a disabled worker’s duties to others. The respondent did not suggest, still less explain why, that would be insufficient to cover the need or unfair on the rest of the team. For those reasons, we give the stakeholder engagement point limited weight in the assessment of reasonableness.[51]The formal training received by the claimant seems to have gone smoothly enough when consumed remotely. There was no suggestion that there was any deficit in the claimant’s own formal training. As for the rather more informal training gained through presence and discussion in the office, we have already set out above the reasons why we think that is a factor of limited weight in the assessment of reasonableness. If important issues arose, they could very easily be shared with the claimant by email, at team meetings, in monthly supervisions or by one-off uses of video conferencing software.[52]As for training given by the claimant to others, we have set out above the reasons why we are not satisfied on the balance of probabilities that the mode of delivery was the reason why some of that training had to be redone. There are several alternative explanations for the need for additional training in that instance, and training given in person must sometimes be redone too. In principle, effective training on a computer system can certainly be given by MS Teams and its screen sharing function, and we are not persuaded that there was anything about the mode of delivery which caused problems on the occasion highlighted in the respondent’s evidence. Sometimes well-trained people struggle and require extra support. The training is not necessarily to blame, still less the mode of delivery of that training. We give this point limited weight in the assessment of reasonableness.[53]For the reasons set out above, we do not think that the need to monitor the claimant’s call handling is a powerful consideration in the assessment of reasonableness. The respondent has no call monitoring software as such, but presence in the office enables one side of a conversation to be heard by line management if they wish. However, the respondent is content for any employee to spend up to 60% of their working week working from home where no such monitoring can take place. There was no suggestion that there was any known problem with the way the claimant took calls, or the number of calls that he took. The appraisal process records that he has been (at least) an effective performer. If there were any actual or suspected problem, then the respondent would have other ways of monitoring performance than observing one half of a telephone conversation while the claimant worked in the office. The respondent’s hybrid working policy means that for the most part, the claimant’s calls and those of his colleagues would not be observed or capable of observation at all. We give this point limited weight in the assessment of reasonableness.[54]For the reasons set out above, we do not accept that physical presence in the office has much to offer in terms of monitoring and supporting the claimant’s welfare. A skilled manager can do that remotely, and the respondent’s logic completely overlooks the fact that physical presence in the office does harm to the claimant’s welfare.[55]Having weighed all those considerations in the balance, our conclusion is that they weigh strongly in favour of making the proposed adjustment. It would be reasonable in those circumstances. The benefit to the claimant outweighs the difficulty and disruption caused by making the adjustment. The complaint brought under sections 20 and 21 of the Equality Act 2010 therefore succeeds.[56]Given the way in which this dispute has arisen, and the failure of several internal processes to resolve it, all three members of the Tribunal wish to add these brief comments. In the Tribunal’s view, good practice would usually entail the following.a. Both sides must be prepared to keep the situation under periodic review. Entrenched positions are unhelpful. This judgment does not necessarily provide a durable answer. Circumstances may change.b. Both sides must therefore engage in an ongoing dialogue about adjustments.c. It is necessary for both sides to cooperate to ensure that good expert advice is available on the questions of support and adjustments.d. That almost certainly entails obtaining up to date OH or other medical evidence. The claimant must cooperate with that. His distrust of OH evidence in general and his assumption that it will always support the employer’s position is not well-founded. If he has objections to particular OH practitioners or OH providers because of past experiences then there are many others that the respondent could choose instead.e. Both sides are reminded of the valuable EHRC Code of Practice on Employment, of which Chapter 6 deals with the duty to make reasonable adjustments. Other useful resources are available on the EHRC website.