Employee with depression awarded £35,000 after being denied flexible working

20 Mar 2019 By Lauren R Brown

When faced with long-term health conditions and disabilities which can fluctuate, it is vital that employers are agile, experts warn 

An employee who suffered from depression has been awarded £35,677 by Leeds Employment Tribunal after he was denied flexible working hours by his employer. 

Employment Judge Keevash ruled the Department for Work and Pensions (DWP) failed to comply with its duty to make reasonable adjustments by not taking into account an employee’s changing circumstances when deciding whether to reinstate flexible working.

Chris Hargreaves, who worked as a case manager from February 2016 until his dismissal in November 2017, was initially taken off flexible hours because he was regularly late but asked to be put back on after his depression worsened.

The DWP told the tribunal that the initial period of flexible arrangements was a helpful “litmus test” that showed flexible working was not suitable for Hargreaves.

But Judge Keevash rejected this, saying Hargreaves’ circumstances had “changed considerably” since the initial period of flexible working, as he had been prescribed new medication and started cognitive behavioural therapy treatment.

Hargreaves started his employment with DWP on flexible hours after an occupational health adviser had informed his line manager that he had suffered from depression since he was 17 and would benefit from a work-stress risk assessment and working flexible hours. 

However, in December, Hargreaves was asked by his line manager, Lindsay Ingle, to go onto fixed hours following a period in which Hargreaves frequently arrived late to work and mislogged his hours. Hargreaves agreed.

Between 4 January 2017 and 19 February 2017, Hargreaves was absent from work due to sickness. His GP signed two Statements of Fitness for Work during that period, in which it was recorded the case worker was unfit for work because of depression. He was off work again between 3 and 4 April.

After his return to work, on 12 April 2017, Ingle invited Hargreaves to attend an investigation meeting into whether he had breached the standards of behaviour, stating it had been alleged that Hargreaves had repeatedly failed to attend work at the required time. The investigation concluded that the case was substantiated and Hargreaves received a written warning. 

On 17 May 2017, it was agreed the fixed hours arrangement would be relaxed. Thereafter, the claimant had to arrive between 9.30 and 10am and he could leave between 5.30 and 6pm.

In July, Hargreaves told the DWP his medication was being changed, and in August he informed them he was starting cognitive behavioural therapy.

Following that, on 20 September, Hargreaves’s cognitive behavioural therapist informed the DWP Hargreaves had requested to be put back on the flexible hours that “many/most of his colleagues are on”, and that he felt Hargreaves was “in a different place in his life” than when he was first working flexibly in January. 

The therapist added Hargreaves’s depression had worsened again and that he “would appreciate if you could support [Hargreaves] in his request for flexi-hours”.

However, the request was declined and Hargreaves was subsequently informed there would be a formal disciplinary meeting to discuss alleged misconduct. In November, he was told he had committed gross misconduct by breaching his fixed hours contract and incorrectly logging his working hours. In a letter, Hargreaves was told there had been 43 instances where he either incorrectly recorded his hours, failed to attend work on time or left work earlier than agreed. 

Based on this, his employment with DWP was terminated. A subsequent appeal was rejected.

The tribunal ruled DWP failed to comply with a duty to make reasonable adjustments when, between 17 July and 21 September 2017, it failed to allow Hargreaves to work flexible hours.

Hargreaves also succeeded in his claims that the DWP discriminated against him when treating him unfavourably by dismissing him and made unauthorised deductions from his pay.

A further claim of disability discrimination failed. 

The DWP has been contacted for comment. 

Rachel Suff, senior policy adviser at the CIPD, said the case highlighted how important it was for employers to recognise that “many long-term health conditions and disabilities can fluctuate, and affect people in different ways.” 

“Being able to negotiate a flexible working arrangement can make a real difference in helping someone manage their symptoms and continue working to their full potential,” she said.

Andrew Willis, head of legal at HR-inform, said the decision highlighted the importance of periodically assessing whether adjustments could be made to remove disadvantages faced by disabled employees. “Even though an adjustment might not be suitable at one time, refusing to consider requested changes in the future may result in employers failing to meet their legal duty in this area,” he said. 

He recommended HR consider using trial periods where adjustments are made and then reviewing them after a period of time to assess whether they are having the required effect. “Taking time and effort to create a positive culture around reasonable adjustments and workplace support can be the difference between finding something that works or an employee becoming disgruntled and seeking a legal judgment,” he added.

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