A ‘hot-desking’ arrangement was used, but an employee with social anxiety disorder was allowed to keep to a particular seat. The seat was sometimes not free when he arrived and people had to be moved. The EAT held that the reasonable adjustment duty applied even though the hot-desking ‘provision, criterion or practice’ was not applied to the disabled employee. The case was referred back to the employment tribunal to decide whether the employer had done enough to satisfy the reasonable adjustment duty.
Employment Appeal Tribunal), 2012. Full decision: bailii.org.
The claimant had social anxiety order. He was an emergency medical dispatcher. The dispatchers ‘hot-desked’, in other words they took any available work station. There was a complicated shift system, with various changeover times and overlapping shifts.
The claimant initially chose to sit in the middle row in the control room. After periods off work with anxiety, which he thought might be due to his location, he asked to sit in a less prominent location, at the back wall next to a window. The employer wrote a letter to managers asking them to ensure that when the claimant was on duty he was able to sit in that position and if necessary to reserve the position for his arrival.
The seat was not always free on the claimant’s arrival so it was agreed a few months later that a reserved sign should be put on the desk. However this was not done, as it was impractical due to most or all seats being needed for overlapping shifts at busy times.
7.Thus, as the Tribunal found, supervisors took proactive steps where possible to have the seat available for the Claimant before he arrived; but sometimes the preferred seat was not available when he arrived and supervisors moved the occupant. For example, the Tribunal found that there were three occasions when the preferred seat was not available and either the Claimant or a supervisor asked the occupant to move. The last of these occasions was on 31 December, when a trainer and two people sitting in adjoining seats moved. The Claimant began to write his letter of resignation that very evening.
Supervisors took proactive steps where possible to have the seat available for the claimant before he arrived .However, said the EAT: “For example, the Tribunal found that there were three occasions when the preferred seat was not available and either the Claimant or a supervisor asked the occupant to move.” After the third occasion, where a trainer and two people sitting in adjoining seats moved, the same evening the claimant began to write his letter of resignation. He claimed unfair (constructive) dismissal, and disability discrimination.
The Employment Tribunal held that there had been no breach of the reasonable adjustment duty. The decision was partly on the technical ground that the provision, criterion or practice of hot-desking was not applied to the claimant.
Held by the EAT: the provision criterion or practice need not be applied to the claimant. The reasonable adjustment duty applied. The case was sent back to the employment tribunal to reconsider.
The DDA provided: “Where … a provision, criterion or practice applied by or on behalf of an employer … places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.? (The current Equality Act is similar.)
Accordingly, the provision, criterion or practice (PCP) – here hot-desking – must be “applied” by or on behalf of the employer. One reason the tribunal held the reasonable adjustment claim failed was because the PCP of hot-desking was not applied to the claimant. The claimant was not required to sit anywhere other than in his preferred seat.
The EAT disagreed. It said there was no requirement for the PCP to be applied to the claimant. The claimant continued to be affected by hot desking because other people who were required to hot desk were still sitting in and intending to use his preferred seat when he arrived for work. The tribunal ought to have assessed whether this placed the claimant at a substantial disadvantage, and if so whether there were further steps which it was reasonable for the employer to have to take.
The EAT sent the case back to the employment tribunal to reconsider. It outlined the decision that would need to be made:
“…It is, we think, arguable that the practice of hot-desking placed the Claimant at a substantial disadvantage in comparison with persons who are not disabled. On the question of reasonable adjustment, the Claimant can argue that it was a reasonable adjustment for the [employer] to have to provide him with a free desk at the back of the room at the start of his shift; that this was indeed successful over a period of months in allaying his anxiety to the extent that he was able to work (see section 18B(1)(a) [of the DDA 1995]); that it was not difficult or expensive to make this provision (see section 18B(1)(b)-(c)); and that it was well within the resources of the [employer] to make this provision (see section 18B(1)(d)-(f)). On the other hand, it may be said for the [employer] that, in the light of the medical evidence, provision of a free desk would allay his anxiety only to a limited extent if at all; that it was not practicable for a supervisor always to be on hand to make sure the desk was free; and that the time and cost involved in ensuring that there would be no mishaps at all was not justified. These, we think, are matters for the Tribunal to assess.”
The claimant here had social anxiety disorder. Some people who stammer may also find it helpful to stick to a particular desk, where there is a hot-desking arrangment: Open plan offices>Hot desking.
Also in an open plan office without hot-desking, some may prefer a more isolated position: Open plan offices: More isolated part of office. Where people keep the same desk, the practical difficulties which arose in the case above should not apply.