Equality Act 2010
Section 39(2)(c)&(d): an employer must not discriminate against an employee by dismissing him or subjecting him to a detriment.
Section 13 (1) - Direct discrimination: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
Section 27 – Victimisation:
(1) A person (A) victimises another person (B) if A subjects B to a detriment because—
(a) B does a protected act, or
(b) A believes that B has done, or may do, a protected act.
(2) Each of the following is a protected act—
(a) bringing proceedings under this Act;
(b) giving evidence or information in connection with proceedings under this Act;
(c) doing any other thing for the purposes of or in connection with this Act;
(d) making an allegation (whether or not express) that A or another person has contravened this Act.
Section 15 - Disability discrimination:
(1) A person (A) discriminates against a disabled person (B) if—
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
Section 39(5) - the duty to make adjustments applies to an employer.
Section 21 - a person who fails to comply with a duty on him to make adjustments in respect of a disabled person discriminates against the disabled person.
The claimant was a long serving member of staff, who had been diagnosed with a musculoskeletal condition that required specialist equipment, including chair, keyboard, mouse and a reading/writing slope, all of which were adjusted specially for their needs and to minimise pain.
‘Hot desking’ was common in the office in which the claimant worked. In June 2018, the claimant was absent from work for a month following an injury. On return to the office, they found that their entire work station had been completely altered or moved, and they experienced some difficulty in getting it back to where it was needed.
On raising the issue with their line manager, they were told it was not practicable to reserve the desk only for the claimant, as the absence had lasted for a month, but that they could ask for help in readjusting the equipment.
In September 2018, an occupational health report was written that recommended a dedicated workstation for the claimant that was correctly set up. Later in the month, however, the claimant was absent for one day. Prior to leaving the office before the day's leave, the claimant left a ‘polite’ note asking that the desk not be used for hot desking. However, on return, the chair had once again been adjusted.
The claimant was subsequently taken through a disciplinary process for the use of an ‘unreasonable’ note. Whilst this was not pursued, it caused distress to the claimant.
EMPLOYMENT TRIBUNAL (ET)
It was found by the ET that the managers had failed to make sufficient reasonable adjustments to accommodate the claimant’s disability, as they took no steps to prevent others from using the desk in the claimant’s absence. It was accepted that keeping the desk unoccupied for a long time was likely to be impractical, however in the short term it was a reasonable expectation to have, as the equipment would need to be readjusted each time.
The manager’s failure was found to have caused the claimant to feel worried and threatened, and that their employment may be potentially prejudiced. This resulted in further findings for victimisation and discrimination.
Employers are once again reminded of the serious consequences of failing to accommodate reasonable adjustments in the workplace. By allowing specialist equipment to be moved and changed, the claimant was put at a significant disadvantage in comparison with their non-disabled colleagues and were as a result discriminated against.
Instead, had the employer followed an approach that was inclusive and positive, a tribunal claim could have been avoided and they would not be facing what could be a potentially large award. At the least, this should prompt a full review of policies for disabled employees, and how hot desking is managed within the organisation. Additional training for managers would also be beneficial.