The Employment Appeal Tribunal (EAT) has considered, in the case of Roberts v North West Ambulance Service, whether a disabled employee could be placed at a substantial disadvantage by an employer’s provision, criterion or practice (PCP), when the employee was not required to comply with that PCP.
Roberts worked for the Respondent as an emergency medical dispatcher. He suffered from an anxiety disorder, which constituted a disability and, following his return from sick leave, requested that his desk was moved from the centre of a busy room, which he felt exacerbated his condition, to a less prominent location at the back of the room. The Respondent agreed to this, and requested that Roberts’ manager ensured the desk was always free for him. However, as the other medical dispatchers all “hot-desked”, and so regularly changed desk each shift, it was often the case that the relevant desk was not free for Roberts. On a number of occasions his desk was being used by hot-deskers at the start of his shift, and they had to be asked to move.
Roberts resigned, claiming constructive dismissal and a breach of the duty to make reasonable adjustments. An employer is under a duty to make reasonable adjustments when a PCP operated by them places a disabled employee at a substantial disadvantage compared with non-disabled employees. Roberts claimed that the practice of hot-desking placed him at a substantial disadvantage, as it meant the desk he required to use was often not available. The Employment Tribunal however rejected his claim, as the practice of hot-desking did not apply to Roberts, and so he could not be disadvantaged by it.
That decision has now been overturned by the EAT, which has confirmed that a disabled person need not have to comply with a PCP in order to be disadvantaged by it. Roberts was clearly affected by the practice of hot-desking, and the Tribunal ought to have considered whether the disadvantage he suffered was a “substantial disadvantage”, and if so, whether the steps the Respondent took to prevent this were reasonable. The EAT therefore remitted the case back to a fresh Tribunal to consider these points.
Impact for employers
- It is perhaps a rare case that an employer’s PCP will not apply to a disabled employee, but they are nevertheless affected by it, and placed at a substantial disadvantage as a result. For this reason, most cases concerning reasonable adjustments concern a PCP being applied to the disabled person, such as particular working hours or working arrangements.
- However, the language under the Equality Act 2010 is clear that, while the PCP needs to be linked to the disadvantage suffered by the disabled person, the PCP itself does not necessarily have to apply to them, and employers should bear this point in mind when dealing with disabled employees.