In person For the v Respondent — 2022

The claimant worked for the respondent from 19 September 2018 as a business support administrator. After the respondent moved from serviced offices to Priory Court, the new office was on the second floor of a townhouse-style building with no lift and 37 stairs. The tribunal accepted that the claimant was disabled by Ehlers-Danlos syndrome and fibromyalgia, causing mobility difficulties, pain and fatigue. It also accepted that, after the move, she could not get up the stairs without substantial difficulty and pain, and that she raised a request for reasonable adjustments on 6 August 2019 seeking to work from home with some duties reallocated.

The tribunal found that the relevant physical feature was the stairs to the second-floor office and that this placed the claimant at a substantial disadvantage compared with non-disabled people. It held that the respondent knew, or could reasonably have been expected to know, of the disability and the resulting disadvantage by 27 June 2019, and in any event clearly knew of it from the occupational health report received on 28 August 2019. That report said the claimant was fit to work and that the issue was purely access, and suggested a ground-floor office, a lift or stair lift, or remote working with some duties reassigned.

The tribunal found that allowing the claimant to work from home with reallocated duties would have been a reasonable adjustment. It concluded that about 90% of the claimant’s role could have been done from home, and that the remaining tasks were limited to administration and checking of paper customer files, packaging and labelling UPS parcels, and some cleaning-related oversight. Those on-site tasks could have been reassigned to Mr Bedi’s PA, while around 10% of that PA’s duties could have been reassigned to the claimant. The tribunal held that the failure to allow remote working from 6 August 2019 to 4 October 2019 was a failure to make reasonable adjustments.

The direct disability discrimination claim failed. The tribunal held that the dismissal on 4 October 2019 was a detriment, but that the claimant’s hypothetical comparator with the same inability to climb stairs would have been treated in the same way. It found that the reason for dismissal was the claimant’s inability to climb the stairs, not her disability itself. The holiday pay claim also failed: the tribunal held that regulation 14 of the Working Time Regulations 1998 calculates accrued leave only up to the termination date, and that the contract expressly stated that pay in lieu of notice did not include annual leave entitlement accruing during the PILON period. Remedy was left to a later hearing.