Ms E Phairs v The Secretary of State for the Home Department: 8001755/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001755/2025Venue GlasgowHearing 9, 10, 11 and 12 February 2026
Between
Ms Erin PhairsClaimantThe Secretary of State for the Home DepartmentRespondent
Before
Employment Judge S CowenMr B Dawes for claimantTrade Union (instructed by Representative) for claimantMr C McCracken (instructed by Solicitor) for respondentDate 18 March 2026
JUDGMENT
The Claimant’s claims of failure to make a reasonable adjustment are dismissed.
REASONS
[1]The hearing was listed to consider the Claimant’s allegations of failure to make a reasonable adjustment only. The parties confirmed at the start of the hearing that the s.15 Equality Act claims had been withdrawn.[2]A bundle of productions had been agreed between the parties and was available as a hard copy document.[3]Evidence was heard from the Claimant and Mr Kilkenny and from Mr Gardener, Mr Griffiths and Mr McEwan for the Respondent.[4]Both parties provided written skeleton argument and oral closing submissions were heard from both parties.[5]The issues to be decided were contained in the Case Management order of 15 October 2025 at paragraphs 8 &9 where it was said that there were two failures to make reasonable adjustments contrary to s.21 Equality Act 2010;a. In or about March 2024, there was a failure to make a reasonable adjustment to allow the Claimant to work from home at short notice when her health conditions made it difficult to attend the office.b. To allow the Claimant to work remotely, with no expectation that she would be under an obligation to meet any office attendance level as set out by the Respondent’s hybrid working policy, or as applied locally.
The facts
[6]The Claimant started working for the Respondent as an Executive Officer on 16 July 2019. The role initially involved case work, but evolved to include, from 2023, asylum screening interviews. This meant that the Claimant saw asylum seekers face to face to initiate the asylum application. It also may include having to alert other authorities, such as police, immigration, or possibly housing or social services. The interviews took place at the Respondent’s offices in Glasgow.[7]From approximately 2023 onward, there was some technical possibility to hold these interviews virtually, by which the applicant would be in the Respondent’s office, but the Claimant may be working from home, or may be in a different office to the applicant.[8]The Claimant suffered from a number of different disabilities, which the Respondent accepted did fall within s.6 EQA and were effective throughout her employment. These were Anxiety disorder, Obsessive Compulsive disorder, Tourette’s Syndrome, Post Traumatic Stress Disorder, Malignant Neoplasm of bone and articular cartilage NOS Ewings Sarcoma in 2006 and long term effects from chemotherapy (bladder, bowel and immune system impacted).[9]In March 2022 the Claimant underwent an Occupational Health assessment which recommended that the Claimant be allowed to work from home on Tuesdays, to allow her to avoid panic attacks in her journey to work the day after her Monday therapy sessions. This was agreed and extended to include working from home for the whole week on alternate weeks. On the other weeks she would attend the office for 2 days in the week. This increased in November 2022, to working 3 days in the office on the weeks between therapy appointments.[10]The Respondent had in place a Workplace (Reasonable) Adjustments Policy and Guidance for managers. It also operated an Attendance Management Procedure with trigger limits on the number of days absence which would be tolerated. It also applied a Hybrid Working policy which required staff to work in the office for a minimum of 60% of their contractual hours, averaged over a three month period.[11]During 2022 on a number of occasions the Claimant asked to work from home instead of attending the office. An attendance review was held in December 2022 which indicated that the Claimant’s productivity was not up to the standard of her colleagues. In response to the question of whether her working from home masked the fact that the Claimant had health problems which meant she was not able to work productively, the Claimant admitted that she thought that was the case. It was agreed that a further OH referral should be made, before any steps were taken.[12]An OH report in January 2023 said that an arrangement of alternating weeks, (one week working from home entirely and one week working from home on 1 day) was working well. Other adjustments were also recommended such as a workplace risk assessment, agreed communication routes, adjustment to performance targets and sickness absence triggers. All of these were implemented. No action was taken on the attendance management process.[13]A return to work meeting and review was undertaken on 17 March 2023 when a Workplace (Reasonable) Adjustment Passport was issued and the pattern was changed to 2 days in the office on one week and then 1 day in the office on the other week, thus working 3 days in the office out of 8 working days per fortnight. At that time it was noted that casework was being removed and that virtual screening was being introduced. The Claimant wanted to continue with the same pattern, but it was pointed out to her that the new work stream meant that there was not sufficient work for her to do at home.[14]On 17 March 2023, there was also discussion about noise cancelling headphones to be used and about the Claimant being given one piece of work at a time, to allow her to concentrate. Discussion was also had about the timing of breaks. During the meeting, Jeremy Wilson spoke of the fact that working from home was not a right and the 40% attendance requirement was the minimum.[15]A review of this arrangement took place in July 2023 when the same adjustments were maintained and the absence triggers for the absence management process were amended to 8 days or 8 occasions. This was specifically only in connection to absences related to anxiety. It was noted that “Erin has a working pattern in place to help support her therapy appointments. However, this is not rigid and additional WFH days can be accommodated depending on the circumstances and what work is available”. This was a conditional adjustment, which the Respondent agreed to at that time.[16]A further review of the workplace (reasonable ) adjustment passport occurred in October 2023 where all the same points were maintained by the same manager, Jeremy Wilson. This included the additional working from home days where it could be accommodated. There is no official record of how many times this was invoked by the Claimant and how many times it was granted or denied.[17]The next review was carried out in March 2024, by Adam Reid who had become the Claimant’s line manager when it was noted that VE appointments no longer existed. However remote screenings could now be carried out when the Claimant was working from home. The same reasonable adjustments were maintained.[18]The Claimant had a number of absences in 2023 and 2024 and attended return to work meetings with her manager on each occasion.[19]A number of messages on Teams and on mobile phones were exchanged between the claimant and her manager, Kevin McEwan from May 2024. The Claimant’s requests to work from home do not all specify that her reasons are directly related to her disabilities. On 24 May 2024 she said she had antibiotics and felt a little better so wanted to work from home and Mr McEwan agreed to it. The reason for the medication is not specified.[20]On 13 June 2024 the Claimant said that her mental health was not good and her tics had got worse with her anxiety and therefore she wished to work from home. Mr McEwan allowed this and moved the claimant to work on enrichment QA work, which was paperwork. On 14 June when the Claimant reported that the doctor thought she may have whooping cough and that was having a bad effect on her mental health, Mr McEwan offered to let her work from home the next week. Similarly on 22 August 2024 when Mr McEwan said he will put her on papers tomorrow so she can work from home.[21]On 17 September 2024 the Claimant said she could not carry out the ‘mobile bios’ as she had stomach problems. When asked to come into the office instead to work, she said she could not do that either, so Mr McEwan swapped her work to virtual screening. The next day she called in sick and on 19 September, she asked to work from home the following day.[22]In September 2024 Mr McEwan offered to show the Claimant how to carry out remote screenings, but the Claimant declined to do so. In October, when the offer was made again, she once again gave reasons why she could not do so. This meant that when the Claimant asked to work from home, she was also asking for her workload to be changed, so that she could carry out the limited task of quality assurance checks on the wok of AO colleagues. This meant that her EO colleagues in the office had to take on additional appointments that day and potentially disrupt their own work schedules, or work additional hours.[23]Where the Claimant did agree to carry out remote screenings, this entailed additional work for those in the office of escorting applicants in and out of the interview rooms, carrying out security checks which could only be done on site, and ensuring that referrals to police, social services and other authorities were made. This could lead to staff having to work overtime.[24]On 21 October, the Claimant asked to work all week at home as she was “not feeling up to going into the office at the moment, my tics are also really bad right now”. Mr McEwan put her down as working from home on Wednesday.[25]Again on 14 November 2024, Mr McEwan allowed the Claimant to work from home.[26]On 21 November, the Claimant asked to work from home and when Mr McEwan asked whether she could do screenings she said she could not as she was “not prepared”.[27]The issue was therefore not merely the Claimant’s ability to carry out her work in the office or not. The Claimant was effectively asking Mr McEwan to alter her workload and reallocate work each time that she asked to work from home.[28]In contrast, on 6 June 2024 the messages between Mr McEwan and his manager indicated that the Claimant was to be told that if she was not fit to work in the office she must take the day off as sick. There was also reference to the fact that the manager knew that the claimant had been out the night before.[29]On 19 June 2024 the Claimant met with Kevin McEwan her line manager and was accompanied by her TU representative Lawrence Kilkenny, This was a meeting to discuss the Claimant’s absence as she had been absent on 9 days on 8 occasions, thus she had met even the amended trigger. At the meeting the structure of the working from home days was discussed and the Claimant agreed that it was working for her. She agreed she found the noise cancelling headphones helpful. With regard to the occasional requests to work from home, Mr McEwan told her that where the work needed to be done from the office they could not allow her to work from home if she was fit to work. He explained that working from home could be accommodated depending on the circumstances. Mr McEwan said this needed to be reviewed. He wanted to send the Claimant for a further OH review which she agreed to and they agreed to adjourn the meeting until such times as they had the OH report. They also agreed that a neurodiverse referral would be the most appropriate.[30]The referral to OH did not occur until 13 November 2024, this was due to Mr McEwan requiring supervision from his manager, who worked a restricted pattern over the summer, and two unsuccessful attempts to meet with the Claimant to discuss the referral.[31]The OH appointment on 27 November 2024 did not go ahead, as it was not specialised to neurodiversity. It therefore took until 13 February 2025 for the OH referral to be carried out.[32]On 19 November 2025 the Claimant told Mr McEwan that she was struggling to work in the office and requested to work 2 days in the office each week, until the OH referral was completed. She produced a fit note which supported this change. The Respondent agreed on 27 November 2024, as a temporary measure, that the Claimant could entirely work from home until the new year and to reduce her workload to 3 screenings per day and to extend her absence triggers to 10 days and 9 occasions per annum.[33]On 31 December 2024, the Claimant was signed off sick stating that she was unfit due to anxiety and Tourette’s syndrome. However, in a call to Mr McEwan the Claimant said that she was able to work from home and Mr McEwan agreed to allow the Claimant do this for a further month.[34]On 6 January 2025 the Claimant called in sick and remained absent until 18 November 2025 when she returned to work on a phased return with amended duties.[35]Whilst she was off sick the Claimant made a request for reasonable adjustment in writing, on 4 March 2025. The request was to work from home and not to have any requirement under the hybrid working policy to meet an arbitrary office attendance level. She indicated that when her health allowed, she would attend the office for around 50% of her contracted hours.[36]The Respondent responded to this on 13 March 2025. The decision was made by Adam Gardener, the HEO, having spoken to Mr McEwan and others about the way in which the Claimant’s requests could be accommodated. He consulted on the effect of her repeated short notice working from home requests on the workload for others at the SSC. The managers told Mr Gardener that it was difficult on some occasions to rearrange the workload at short notice, in order to allow the Claimant to be able to work on quality assurance assessment of AO’s work, from home. This meant that someone else had to pick up the screening appointments which had been allocated to the Claimant. On some occasions the Claimant told her managers that she could not carry out the allocated work, even though she was fit to work. On such occasions, the managers altered the work allocation to ensure that screenings occurred. This led to repeated additional workload for both the managers and other staff at the SSC.[37]Mr Gardener’s response to the Claimant on 13 March 2025 refused to allow same day work from home requests. This was said to be because it relied on AO’s being able to accompany applicants to and from interview rooms, but the number of AO’s was being reduced over the next few weeks and therefore they could not continue to support this adjustment.[38]Mr Gardener offered, in the same letter to try to find an alternative role for the Claimant, where it would be possible for her to work from home all the time. He explained that it would not be possible for the Claimant to remain in a customer facing role, if she wanted to work from home at short notice.[39]The Claimant made the same reasonable adjustments request again on 31 May 2025, no alternative outcome was given. The Claimant remained off work until November 2025 when she returned to work on a phased return. She submitted a formal grievance in September 2025 and was provided with the outcome in October 2025, which was not upheld.[40]The Claimant started the ACAS early conciliation process on 19 June 2025 and received the certificate on 4 July 2025. Her claim was issued in the tribunal on 17 July 2025. The Law Duty to make adjustments
The Law
[41]S.20 Equality Act 2010:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.(2) The duty comprises the following three requirements.(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. 42. s. 21 Failure to comply with duty: (1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person[43]The burden is on the claimant to show the application of a provision, criterion or practice, and the substantial disadvantage suffered by her because of it. Substantial means “more than minor or trivial”. If that is done the burden shifts to the respondent to show that the adjustment in question was not reasonable. A one-off act can amount to a PCP where there is an indication that it would be repeated if a similar situation arose in future (Ishola v Transport for London [2020] EWCA Civ 112, CA).[44]The duty to make reasonable adjustments does potentially require an employer to treat a disabled person more favourably than others (Archibald v Fife Council [2004] ICR 954[45]The Tribunal must in determining a reasonable adjustments case, consider first, the nature and extent of the substantial disadvantage relied on by the Claimant, then make positive findings as to the state of the Respondent’s knowledge of the nature and extent of that disadvantage, and assess the reasonableness of the adjustment that it is argued could/should have been taken.[46]It may be a reasonable adjustment to move the Claimant to a vacant role, or in some circumstances, even to create a role for the Claimant (Southampton City College v Randall 2006 IRLR 18 EAT)[47]What is reasonable is considered objectively having regard to all the circumstances. The Tribunal must consider: a) Whether taking any particular steps would be effective in preventing the substantial disadvantage; b) The practicability of the step; c) The financial and other costs of making the adjustment and the extent of any disruption caused; d) The extent of the employer’s financial or other resources; e) The availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and f) The type and size of the employer.[48]The test of reasonableness is objective and will depend on the circumstances of the case. The Tribunal will consider whether or not the proposed adjustment would be effective in preventing the substantial disadvantage. There must be a prospect of the disadvantage being alleviated in order for it to be considered reasonable.[49]A further part of the test is that the duty to make reasonable adjustments will only arise if the respondent not only knows, or ought reasonably to have known, of the disability but also that the individual is likely to be placed at the substantial disadvantage.[50]The Respondent was aware of the Claimant’s multiple disabilities, which resulted in her having a suppressed immune system; meaning she was susceptible to common illnesses. The Claimant also suffered from anxiety and catastrophising which meant that from time to time it was difficult for her to leave the house and travel to the office in order to carry out her work. When she was anxious her tics increased, which was distressing for her. This led to the Claimant wanting to work from home at short notice, on occasions.[51]The Respondent made a number of adjustments for the Claimant, including noise cancelling headphones, adjustment to the sickness absence policy to give greater absence allowance, an extended regular working from home pattern, changes to her workload and limiting requests to one piece of work at a time. The issue in this case was purely in relation to the requirement to attend the workplace and the Claimant’s short notice requests to work from home.[52]The Respondent did accommodate the Claimant to work from home at short notice from July 2023 and had agreed to do so “depending on the circumstances and what work is available”. The evidence indicated that both Mr Wilson and Mr McEwan had, on a number of occasions, altered the workload of others to accommodate the Claimant’s requests.[53]Neither party provided any statistics to show how often the Claimant asked to invoke this further adjustment, although the evidence of messages between the Claimant and Mr McEwan indicted that that it occurred on a number of occasions through May – October 2024, the vast majority of which the Respondent accommodated.[54]The Tribunal noted that the Respondent took a number of steps to support the claimant to remain in her work, including, altering her workload targets, her attendance triggers, providing headphones, adapting the manner in which her managers communicated with her. All of these were effective in addressing her anxiety and thereby limiting her tics to a level which the Claimant felt able to work. The Respondent therefore was aware of the substantial disadvantage to the Claimant of the requirement to attend the office on a 60% basis and had adjusted this with regard to the Claimant’s regular working pattern. Reasonable adjustments had therefore been put in place.[55]The Claimant’s request to work from home at short notice started as an occasional request and became a more repetitive requirement, with less and less checks on the cause of the problem. It seems from the evidence that the Claimant and Mr McEwan had a good working relationship, where he tried to support the Claimant as much as he could. However, the number of occasions and regularity of the Claimant’s request not to attend the office and the lack of evidence of her reasons being linked to her disability, caused those higher up the management chain to become more concerned about this adjustment.[56]Where the Claimant was allowed to work from home, it meant either that her workload had to be altered, so that someone else took on the interviews that were assigned to her, or that someone had to support her conducting interviews online, by escorting the applicants in the building, when the Claimant was not there. Either way, this added to the workload of those present in the building, at short notice.[57]By the time the Claimant made her formal request in March 2025, to disapply the requirement to attend the office and to formalise her choice to work in the office or at home, the availability of the alternative paperwork was reducing, as was the availability of other staff to support the Claimant’s remote working.[58]The reasonableness of this adjustment therefore altered over the course of time and at the time of the decision, Mr Gardener was aware that it was going to become more difficult for the organisation to support the Claimant’s remote working, due to forthcoming staff changes. Would it alleviate the disadvantage[59]Allowing the Claimant to work from home when she wanted would alleviate her inability to comply with the requirement to attend 60% of the time. However, the other adjustments which the Claimant had, already addressed this issue. She was allowed to work a limited number of days each week in the office, averaging only 3 out of 8 days per fortnight, the equivalent of 37.5% of her working time. Therefore, at the time the request was made to allow her to work from work as she pleased, there was no disadvantage to her about the application of the hybrid working policy. Practicality[60]The practicality of the step was difficult for the Respondent, due to the short notice alteration which would be required to the workload of those in the office, to cover the work of the Claimant. Due to the reduction in staff, this would be difficult to support. It would also mean that the Claimant was left with far less work to do, as the quality control of the AO work was only a sample and did not amount to a full role on 4 days per week. Disruption to the Respondent’s business[61]The Tribunal is allowed to take into account the disruption caused by the Claimant working from home at short notice. The Tribunal found that whilst this was tolerated by Mr McEwan for some time, it became increasingly difficult to do so and that some staff were voicing their opposition to having their workload altered. The Claimant choosing whether to work as per her agreed arrangement, or not, also meant that the workflow of the Respondent would be disrupted and the Claimant would not be working in the manner which her role envisaged. This was both disruptive and unsustainable to the Respondent.[62]The Respondent had undertaken a number of other reasonable adjustments which already allowed the Claimant to work from home more than other staff. The practical outcome of the Claimant’s request was a move to full time working from home, with some work in the office, at the Claimant’s control. This would not be practical on a long term basis for the Respondent, who would have to potentially rearrange work for the Claimant and others, each time the Claimant chose to work from home. There would be a constant uncertainty as to the Respondent’s cover in the office which led to problems with rostering of staff.[63]The Respondent also made allowance for the Claimant’s disability and her absence during the period when they were attempting to resolve this issue. She was allowed to work from home during December and January 2025, which also required alteration in the workload for others. The Respondent therefore tried to accommodate the Claimant as much as it could and did accommodate her inability to comply with the requirement to work 60% of her time in the office, but was unable to accommodate an uncertain arrangement on a long term basis.[64]The Respondent was part of a large organisation, but the Claimant could not necessarily transfer to many other jobs within the Home Office. Her skills, training and expertise meant that she could carry out other EO roles. The Respondent looked for other suitable roles for the Claimant, as a means of alleviating her disadvantage and offered that she could be transferred to other roles which could accommodate the working from home requirement.
Conclusion
[65]The Tribunal concluded that the adjustment of allowing the Claimant to work from home as much as she wanted to, was not a reasonable adjustment given that the Claimant already had a substantial ability to work from home and other adjustments to ensure that she was not placed under pressure from her work. It was not reasonable for the Respondent to have to disrupt others work to the extent this would require and to give the Claimant free rein to dictate when she would work from the office. The Claimant’s request was therefore not a reasonable adjustment. The refusal to allow it was not discriminatory.[66]In relation to the adjustment to disapply the hybrid working policy, the Tribunal concluded that this had in effect already been disapplied and the disadvantage alleviated by the adjustment of working 3 out of 8 days in the office. The Claimant was therefore not placed at any substantial disadvantage as other adjustments had already eradicated this issue. The refusal therefore to disapply the hybrid policy was not unreasonable and not discriminatory. Time Bar[67]The Claimant knew on 13 March 2025 that her application for reasonable adjustments had been denied. She failed to start her claim with ACAS early conciliation until 19 June 2025. This was beyond the 3 month time limit. The Claimant provided no evidence to support the suggestion that she was not able to have started her claim within the time limit. Whilst the Claimant was off work at the time, there was no evidence to suggest that she was unable to give instructions, or to contact ACAS in time.[68]On the basis that she was out of time at the time when ACAS was started, there is no basis on which to extend time on a just and equitable basis. The claims therefore were out of time.[69]However, for the reasons outlined above, even if I am wrong to say that she was out of time, her claim lacked merit in any event.