Did an employer fail to make reasonable adjustments by failing to prevent a disabled employee’s colleagues using her desk as a hot desk whilst she was not using it?
Baker v House of Commons Commission
Ms Baker had been employed by the House of Commons Commission since 1991. In 2005, she began to experience musculoskeletal problems, and it was subsequently recommended by Occupational Health that she should be provided with specialist equipment to use whilst she was at work. The equipment included a specialist keyboard, mouse, number pad, a reading/writing slope and an orthopaedic chair which was able to swivel, to reduce the need for Ms Baker to twist her back or neck.
In early 2015, Ms Baker and her team were moved to a different office and in April 2016, they were moved again to a different location within this office. In this new office setting, Ms Baker was placed at a desk which meant that she was required to turn more whilst sat at her desk. She raised this as an issue with her line manager and it is reported that he responded to state that “there was nothing he can do about it, he wasn’t moving from the inner position and he was not interested in her requirements as he was not moving.” Ms Baker spoke to another manager and he also said “there was nowhere else for her to sit, so she would just have to get on with it and sit where she’s now been put”.
It is understood that the Claimant did not raise the issue of her seating position or any health concerns between April 2016 and July 2017; however, on 31 July 2017, Ms Baker sent an email to her line manager to inform him that her symptoms had returned. Ms Baker was then referred to Occupational Health and on 3 November 2017, an Occupational Health adviser contacted Ms Baker’s line manager to advise that she would benefit from various adjustments, including a sit/stand fully adjustable desk and a desk by a wall or window.
On 8 November 2017, Ms Baker raised a grievance against her managers, citing their failure to provide reasonable adjustments and also raised complaints of bullying and harassment.
Just over a month after Ms Baker had raised her grievance on 18 December 2017, a team meeting was held; however, Ms Baker was not invited to attend and on 15 February 2018, another meeting was arranged which she had not been invited to. This time, Ms Baker decided to attend the meeting only to be told that she needed to leave and that the meeting would not start until she had done so and Ms Baker left the meeting feeling humiliated.
On 28 June 2018, Ms Baker had an accident and injured her knee, which resulted in her being off work for almost two months. When she returned to the office, she noticed that her specialist equipment had been tampered with and her desk had been used whilst she was off work. Ms Baker took this as a “personal threat towards her and a complete violation of her identity”.
The House of Commons Commission argued that it was not practical to reserve Ms Baker’s desk space during the time she was off work due to the lack of available desks in the office for other employees to use.
Following this incident, on 20 September 2018, Ms Baker left a note on her desk asking her colleagues not to use her desk or equipment whilst she way away from the office for the day. Upon her return, she noticed that her equipment had yet again been used – she reported this so that her equipment could be readjusted.
The House of Commons Commission subsequently commenced disciplinary action against Ms Baker on 27 September 2018 for leaving a note on her desk asking her colleagues to refrain from using her workspace and equipment and on 15 January 2019, Ms Baker issued various claims at the Tribunal against the Respondent, including a failure to make reasonable adjustments, discrimination arising from a disability and victimisation.
Ms Baker succeeded with her complaints that the Respondent victimised her and subjected her to discrimination arising from disability when it commenced disciplinary action against her for leaving a polite note on her desk asking staff to refrain from using her workspace equipment as a hot desk on 27 September 2018 and her claim that the Respondent failed to make a reasonable adjustment when it failed to prevent use of her desk as a hot desk on 20 September 2018, during her short absence.
Ms Baker was not successful with her other claims – as these were brought out of time and she had not met the test to satisfy the Judge that the time limit should be extended.
An employee is disabled under the Equality Act 2010 if they have a physical or mental impairment that has a substantial and long-term adverse effect on that individual’s ability to carry out normal day-to-day activities. If an employee is disabled, the employer has a duty to make reasonable adjustments.
In this case, whilst the employer had made reasonable adjustments in terms of providing the required equipment for the Claimant, the employer’s failure to prevent other members of staff from using Ms Baker’s workspace and equipment under their hot desk policy, whilst she was away from the office, amounted to a failure to make reasonable adjustments.
It can sometimes be difficult for employers to identify what adjustments might benefit an employee and reduce any substantial disadvantage caused to them due to a disability; however, if an employee is telling an employer why something causes a disadvantage and how an adjustment could benefit, employers are well advised to engage with the employee. If a suggested adjustment cannot be implemented, employers should explain why that is the case.
If you have any queries in relation to how to manage reasonable adjustments, including workplace policies and procedures or any other queries, please contact our employment team on 01228 552600 or 01524 548494.
This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.