In a recent employment tribunal judgment on remedy, an administrative officer at a Government department has been awarded £29,065 in compensation, which included a £24,000 award for injury to feelings, after her requests to work from home on consecutive days because of menstrual health issues were refused by her employer.
The employee suffered from debilitating menstrual symptoms including migraines, intense pain and vomiting. Although her manager had previously agreed for her to work from home when she could not attend the office due to the effect of these symptoms, this home working arrangement was later withdrawn. These symptoms often prevented her from commuting to the office for around five days each month. However, she maintained she was able to work from home during these episodes.
She was subsequently informed that she must attend the office or take sick leave, including during the three to five consecutive days per month when her symptoms were most acute. This appeared to be due to her employer misunderstanding the occupational health advice, mistakenly believing that remote working could only be considered if it was compatible with business needs. The employment tribunal heard evidence that she experienced a range of debilitating symptoms linked to her disability, including menstrual associated migraines, severe abdominal pain, vomiting, loss of consciousness, heavy bleeding, severe constipation, excessive gas, bloating and piles.
The employment tribunal accepted her account, finding that she experienced “severe and sustained stress anxiety and loss of self-worth,” including episodes of depression, tearfulness and social withdrawal, serious strain on her marriage and relationships, stress-induced hair loss and loss of confidence, sleep disturbances and difficulty recovering because of the need to prepare for formal meetings.
The employment tribunal ruled that her employer had failed to comply with the duty to make reasonable adjustments under the Equality Act during the time period covered by the employee’s claim, in that her employer did not always allow the employee to work from home on a consecutive basis between 3 and 5 days per month, when her symptoms were most acute, and often at short notice. Furthermore the two disciplinary warnings she was given for poor attendance amounted to discrimination arising from the employee’s disability under the Equality Act.
This ruling stems from an unfortunate case of the employer misinterpreting its legal duty to apply reasonable adjustments to its own policy on permitting employees to work from home. In this case occupational health advised allowing the employee to work from home when symptomatic. Instead of implementing this as a reasonable adjustment, the employer treated it as a request subject to business needs, adopting the same approach as for other non-disabled staff. The case is a reminder for the need for employers to make reasonable adjustments where this is required due to an employee’s disability.
FSB members can find fact sheet guidance on ‘absenteeism, ill-health and disability discrimination’ on the FSB Legal and Business Hub. FSB members should contact the FSB Legal Advice Line for legal advice.