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Asthma and Reasonable Adjustments

Miss Browne worked for the Metropolitan Police as an emergency call operative in an open plan office. Miss Browne maintained that it was this open plan environment that was triggering her asthma because it was cold, the temperature fluctuated, and she was exposed to viral or other infections of those working around her. Her employer allowed her to work in different places in the control centre and allowed her to control the temperature of her own work space with various personal adjustments. Miss Browne brought claims for disability discrimination for a failure to make reasonable adjustments.

Was Miss Browne discriminated against?

Miss Browne v Commissioner of Police of the Metropolis (“the MET”)

Miss Browne worked for the MET in the Command Control Centre (CCC) in Hendon as an emergency call operative. The CCC is a purpose-built building and Miss Browne was based on the first contact floor. Both floors of the CCC were open-plan floors where staff worked within the line of vision of a supervisor due to the importance of the accuracy of emergency calls.

Miss Browne was diagnosed with asthma in 2004. This was assessed in 2010 as “moderate persistent asthma”. In response to advice from her GP and also Occupational Health, she was permanently excused from night duties in 2012. During 2013 and the beginning of 2014 Miss Browne took sick leave on a frequent basis, which she attributed to asthma. Miss Browne raised the issue with her line manager that it was the environment of the open-plan office that was triggering her asthma because it was cold, the temperature fluctuated, and she was exposed to viral or other infections of those working around her. Her employer then placed her in a separate office on a temporary basis. During that period, she suffered no ill health or absence from work. When she moved back to the open plan office she became unwell and was certified as unfit to work due to asthma. During her absence her pay was reduced in accordance with the MET’s sick pay policy. In March 2016, she was moved to the ground floor of CCC, also an open-plan area and from that date onwards did not have any further ill health as a consequence of her asthma.

It is worth noting that the MET did have environmental testing of the building undertaken in the context of the health issues raised by Miss Browne. Different parts of the building were tested for air temperature, wet bulb globe, and relative humidity. All three sets of tests found on all three criteria that the working environment in the building fell well within approved guidelines, and all three tests reported no material difference or discrepancy in the environmental conditions in different parts of the building which were tested.

Miss Browne brought claims for disability discrimination due to a failure to make reasonable adjustments. She argued that the MET had applied a requirement for employees to work in open plan spaces in which the ambient temperature could not be controlled by an individual employee. Miss Browne said this put her at a substantial disadvantage as a disabled person with asthma, and a reasonable adjustment would have placed her in a different office environment where she could manually control the ambient temperature.

Decision

The Employment Appeal Tribunal upheld the Employment Tribunal’s decision to reject Miss Browne’s claim.

The two factors that contributed to this decision from the ET were the state of the medical evidence available and the consistencies when testing the varying working spaces that Miss Browne had been in. The EAT upheld their findings.

In light of that medical material, the EAT found that the medical documentation was incomplete and the ET had not been provided with a full GP printout which might have been of assistance. Secondly, other than sick notes, the Tribunal found that there was no direct evidence available to the MET from a treating doctor that was familiar with Miss Browne’s treatment. Thirdly, there was no evidence of an independent professional assessment by a qualified physician of the cause of Miss Browne’s respiratory symptoms. Due to these findings, the EAT upheld the ET’s decision that Miss Browne had failed to establish that she was placed at a disadvantage and this was wholly unsupported by medical evidence. It also highlighted that Miss Browne referred to a range of workplace triggers but never identified any trigger for asthma away from the workplace.

In relation to the building tests, it was found that there was consistency in temperature between the different work spaces that Miss Browne had worked in and they were maintained at a constant temperature that was well within health and safety guidelines. Furthermore, Miss Browne was allowed items such as a heater, fleece and hot water bottle to be able to control the temperature of her own work space. There were also instances where Miss Browne was not ill when working in the open plan office environment. The EAT upheld the ET’s decision that this was not a Provision, Criterion or Practice that put Miss Browne at a disadvantage.

Comment

This is quite a complex case in relation to the obligation of the employer to provide reasonable adjustments and when they have met that obligation. There was no dispute in this case as to whether Miss Browne was disabled. The issue was whether the employers PCP – the requirement to work in an open plan office – placed her at a substantial disadvantage when compared to a colleague without a disability.

Employers must carefully consider whether any PCP does cause a substantial disadvantage to a disabled employee by maintaining a record of all medical and audit advice received. If a disadvantage is caused, and something can be reasonably be done to avoid it, employers must make those adjustments.

If you have any queries in relation to discrimination or any other HR queries then please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01534 548494.

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