Employment Law Case Update: Reasonable Adjustments for Mental Health

Mental health has always been a topic of interest for employers as they understand the nuances required to manage an employee suffering with poor mental health.  Our Employment Law team today review the case of Mr A Hurle v London Fire Commissioner which reminds employers of their duty to consider reasonable adjustments for employees with disabilities, including poor mental health.

Mr Hurle started as Fire Station Manager for the London Fire Brigade in January 2019. In February 2019 he applied for an urgent transfer to a station closer to his home, citing personal circumstances that were causing him “much distress,” including his daughter’s mental health issues. A few days later he was diagnosed by his GP with depression and prescribed medication. He informed his line manager, Borough Commissioner Prasad, who had him complete a stress risk assessment. Mr Hurle said he was highly stressed about the health of his wife and daughter, he was suffering inadequate sleep due to the worry about his future and the need to get up at 4:15am for work.  He was subsequently referred to Occupational Health.

Mr Hurle requested adjustments including a phased return to work in the short term and a transfer to a closer station in the long term. The OH report supported his transfer request, saying the long commute was detrimental to his mental health and a transfer to a closer station would be beneficial.

Mr Hurle, still signed off sick and having periodic meetings with OH, heard of a vacancy in Feltham. A transfer would need to be requested by the area Deputy Assistant Commissioner, Mr Perez. DAC Perez decided not to request the transfer partly because Mr Hurle was still in development and it was the policy of the employer not to transfer an employee still in development, except in exceptional cases.

In July Mr Hurle was invited to a disciplinary hearing and asked to “admit” to the “offence” of having an “‘unacceptable record of attendance’: 104 working days lost out of a possible 140.” He was subsequently dismissed in October.

Mr Hurle then filed a claim against his employer for discrimination based on disability and for failing to make reasonable adjustments. The Employment Tribunal (ET) found in favour of Mr Hurle in both cases.

The ET said the employer’s practice of not transferring an employee during development put Mr Hurle at a disadvantage. His depression made the commute harder to cope with than it would for an employee without a mental disability and so there was a real chance that allowing the transfer would have helped facilitate his return to work. It would have therefore been reasonable for the employer to make an adjustment to its policy and allow Mr Hurle to be transferred even while still in development.

The ET also decided that Mr Hurle was discriminated against at the disciplinary hearing and dismissal. The employer put forward several reasons it claimed justified these actions, including providing a safe service to the public and ensuring other employees are not overburdened by having to cover absent employees’ workloads. While accepting these were legitimate aims, the ET found the disciplinary procedure and dismissal were not proportionate methods to achieve them.

It held that using the disciplinary procedure and referring to Mr Hurle’s absence as an “offence” was inappropriate. Judge Moor noted that it was no longer the employer’s practice to deal with absence under the disciplinary procedure and that there were other policies, namely the Managing Absence Policy and Probation Policy, which would have been more appropriate. The employer’s actions were therefore not justified and Mr Hurle succeeded in his claim of discrimination based on disability.

A remedy hearing will take place at a later date.

This case reminds employers that it can be very difficult to justify denying adjustments for a disabled employee. Employers should be able to show they’ve considered the proposed adjustments carefully and have a valid reason for refusal. It may not be sufficient to argue that there was no guarantee the adjustment would be successful. A tribunal may consider the adjustments to be reasonable where there is simply a “real prospect of removal of some of the disadvantage” caused by the disability. 

Employers should also be cautious about the influence of unconscious bias on how people with disabilities are treated within their organisation. Compensation awarded to an employee by a tribunal for a successful disability discrimination claim is uncapped, so employers should ensure that managers are properly trained on their obligations under the Equality Act 2010 towards people with disabilities.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or just fill in our subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.