Case law | Pilawa v Properties on the Market and Spericle | Moorepay
July 4, 2024

Case law | Pilawa v Properties on the Market and Spericle

On the hot topic of returning to the office, this case underscores the risks of mandating such returns, especially when protected characteristics must be considered.

Pilawa began working as an administrator at “Properties on the Market” on November 19, 2019. She had an agreement to work from home during severe endometriosis episodes, which was satisfactory until August 2021.

On August 4, 2021, her manager criticised her sick days and performance. Pilawa’s subsequent email to a director went unanswered, but an executive manager replied on September 24, 2021, stating that the company couldn’t allow unwell employees to work from home or the office. 

“As a responsible employer we cannot allow people to work if they are not well, whether it’s from home or in the office. In order to work you need to feel well mentally and physically and to be fit to fulfil all your duties and responsibilities that come with your role. If you are not well you should not be working.

Feeling “mocked and ridiculed,” Pilawa visited her GP and was signed off work. Informally notified of her dismissal in late September, she raised a grievance on October 4, 2021, the same day she was removed from the company systems.

“As an employer, we only make necessary adjustments if any employee requires such adjustments to perform their duties at the workplace only. It is not our remit to follow the employee outside their workplace to change any necessary adjustments.”

On 5 November 2021, Pilawa returned her form and was immediately dismissed. Her reply stating she had completed the form was ignored, and her dismissal was confirmed on 8 November 2021.

Judgement

The tribunal found that Pilawa was disabled, and the company was aware or should have been aware of her disability. 

Her dismissal was deemed unfair, and she was found to have been discriminated against due to her disability and the company’s failure to make reasonable adjustments. 

The award totalled £31,707.34, including £15,000 for injury to feelings.

The tribunal noted that evidence for dismissal reasons was fabricated, and no policy for system access removal was in place.

It’s also interesting to note that by way of a reasonable adjustment, Pilawa was allowed to give evidence for the 8-day hearing from her bed.

Learning points

Clear employment terms

  • Employers with clear office work terms should ensure employees know remote arrangements are temporary, but must be cautious with long-term remote work arrangements.

Rationale for office return

  • Provide clear business reasons and evidence for requiring a return to the office. 
     
  • Weak justifications can lead to constructive dismissal claims.

Consultation

  • Engage in consultation to seek agreement and explore alternatives like hybrid working.

Exceptional cases

  • Carefully consider employees’ additional reasons for opposing a return, such as disabilities or caregiving responsibilities.

Duty of care

  • Conduct risk assessments and provide necessary equipment and adjustments, including for home working. 
     
  • Consult medical advice before considering termination.

System access policy

  • Have clear, consistently applied policies for removing system access.

Fair procedures 

  • Follow fair procedures to address significant risks and avoid additional penalties.

Important: Employers should seek advice from employment law specialists and consult medical experts and health and safety professionals when dealing with potential disabilities.

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Afsha Sindhu
About the author

Afsha Sindu

Afsha is Moorepay's Employment Law Solicitor in the Compliance area of the business. With many years working in this industry, she has an acute knowledge of the ins and outs of Employment Law and HR Legislation, specialising in GDPR compliance. This means she's able to inform our clients of the most practical solutions to their HR issues and queries.

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