A case in the Leeds Employment Tribunal illustrates how important it is for employers to not make judgements once, about how to accommodate a disability as people’s health needs change over time, meaning the employer’s approach has to also change over time.
The case involved the Department of Work & Pensions and an employee who suffered from depression and had been denied flexible working because he’d been regularly late and mis-logged his hours. Over the course of his employment his medication was changed and he also undertook cognitive behavioural therapy treatment, with the therapist informing his employer that he was “in a different place in his life” than when he’d previously been working flexibly, and that his depression had worsened and that the employee would appreciate if the employer could support his request for flexi hours. The request was declined, and he was accused of gross misconduct for breaching his fixed hours contract and incorrectly logging his working hours. There were 43 occasions where he’d incorrectly recorded his working time, failed to attend work on time or left earlier than agreed. This resulted in his employment coming to an end and a tribunal ruled that the employer had failed to make reasonable adjustments when it declined to allow him to work flexible working hours. He was also found to be discriminated against under s. 15 of the Equality Act 2010 when the employer treated him unfavourably by dismissing him. His ability to attend work was clearly affected by his disability, so the burden shifted onto the employer to justify their actions.
This case also illustrates that whilst in unfair dismissal terms you may well have reason to dismiss somebody if the employee also has a health condition, you also need to think about the disability angle: whilst there may have been conduct issues they may still be able to show that that conduct is connected to their disability. In such cases you need to be able to justify that dismissal is a proportionate means of achieving your legitimate aim, which could be regular attendance at work.
We suspect that in this case, the employer could not evidence to a tribunal’s satisfaction that had they tried flexible working arrangements again, that this wouldn’t have resolved all the issues with the employee and enabled him to work as required. Clearly the employer had a flexible working policy in place where employees would work core hours and then have quite a lot of flexibility around that: it is hard to justify not allowing that same flexibility to an employee with a disability. This would be different to an employer who has set working hours for everybody, and flexibility may be a luxury in the employer’s gift as opposed to more of an entitlement.