A law firm that asked a female legal secretary who was used to working at home to work in the office for a few days a week, did not discriminate against her, an employment tribunal has ruled.
Between 2020 and 2023 Ms Pemberton, who had rheumatoid arthritis, worked at home for RBG Legal as one of three secretaries providing support to 20 fee earners. Her working relationships were said to be good.
In August 2020 it was agreed that Ms Pemberton could work at home and her employer would transport her bespoke chair and mouse to her home. An office laptop was provided.
Following a workplace assessment, Ms Pemberton was provided with a light-touch keyboard, a footrest and a large monitor. Adjustments to her workload were made because of her disability.
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In January 2021 Ms Pemberton reported pain in her right hand and it was considered that repetitive mouse-clicking was responsible for the pain. After it flared up again in April, RBG Legal told Ms Pemberton to only “… proceed if you are able to.”
After a hybrid working pattern was organised for some employees (but not Ms Pemberton), the claimant wrote to partner Daniel Abrahams: “The injury to my right hand prohibits travel into the office and I will be working from home until at least January 2022”. Mr Abrahams asked Ms Pemberton to inform HR of this.
Ms Pemberton’s condition meant that she couldn’t use certain software hands-free. As a result, RBG informed her that she was going to be placed on statutory sick pay from 24 January 2022. She was invited to discuss her absence from work after Occupational Health suggested obtaining a DWP Access to Work report.
Ms Pemberton remained off sick throughout the summer of 2022 but in September the Access to Work report was completed and recommended further equipment, such as Lightkey software, which enables voice commands. This was delivered in October and training started in November. However, after one day’s work, she was signed off sick.
Return to work plan
A revised return to work plan at home to commence 5 December 2022; four hours a day for three days a week for the first two weeks, then five hours a day for three days a week, increasing to six hours a day after the Christmas break.
After Ms Pemberton experienced wifi problems at home RBG asked her to attend the office for two days, on 15-16 December. She did not go to the office as requested but did attend an online meeting to discuss her continued absence.
After further meetings, another phased return to work was planned, which went well.
After a meeting with Ms Pemberton in April 2023 HR business partner Sanjeet Samra told the head of HR in an email that Ms Pemberton felt it was not safe for her to work from the office because “she has disability, compromised immune system, ethnic minority disproportionately impacted by effects of Covid-19 (son is disabled and at home)”.
Following the meeting Ms Pemberton queried with Mr Samra the need for secretaries to work from the office and suggested that the hybrid working policy was not being applied consistently, saying: “I don’t mind following the policy if others are”.
Meanwhile, Mr Abrahams was learning new software and altering his working patterns to make up for the absence of Ms Pemberton. In an email to HR in July 2023 he referred to “wasting valuable fee-earning time”.
Good reasons
The tribunal judge said there was no doubt that if Ms Pemberton presented good reasons why she should not always work two days a week from the office, those would have been considered sympathetically by her employer.
In June 2023, Ms Pemberton sent/re-sent about 100 written questions to HR, which the tribunal heard were often confrontational in tone. The judge concluded she was “clearly embarked on what became this tribunal litigation”.
In July 2023, Ms Pemberton wrote to the firm’s HR team saying that she had named them as individual respondents to a potential ET claim and that unless they provided written answers to her questions within a week or so, she would take it as “an admission of liability” and would “submit my claim to the tribunal without any further notice”.
The firm considered that any reply to the continuing questions would be counterproductive.
The tribunal judge O Segal KC at London Central examined whether any victimisation, harassment, failure to make reasonable adjustments and discrimination had taken place and ruled that RBG had acted reasonably in providing assistance to Ms Pemberton and that asking her to come into the office did not constitute harassment.
Pemberton’s complaint that the firm failed to modify her duties or allow home working was “clearly wrong”.
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