The Manchester Evening News has an article on an Employment Tribunal claim by a Mr Roberts (“the Claimant”) against his former employers, North Western Ambulances Services (“the Respondent”). The Claimant commenced work with the Respondent in 2008 as a 999 ambulance controller. He suffers from an anxiety disorder and states that he informed his employer of this when he started work.
The Respondent introduced a policy of hot-desking in 2009. The Claimant started to suffer panic attacks when he found that other workers were using his desk and complained to managers at the Respondent. He further asked that a certain seat be reserved for him to prevent his succumbing to the panic attacks. However, the Respondent stated that they were unable to make such an exception for the Claimant as overlapping shifts meant that it would be impractical to guarantee him a seat. The matter came to a head on New Years Eve 2009 when the Claimant arrived at work and found ‘his’ seat taken. He resigned from work and subsequently submitted a claim for constructive unfair dismissal and disability discrimination at the Employment Tribunal.
At the original Tribunal in 2010 the Judge held that the relevant Practice, Criterion or Provision did not affect the Claimant. This was subsequently over-turned in the Employment Appeals Tribunal and the matter remitted to another Tribunal for a fresh hearing.
This matter concerns, potentially, three types of disability discrimination (under the new legislation – the Equality Act 2010): direct, indirect and failure to make reasonable adjustments. Assuming that the Claimant can show that he has a disability under the Equality Act 2010 we shall now go on to consider the various types of discrimination.
To show direct disability discrimination the Claimant would have to prove on the balance of probabilities that he had been treated less favourably than other employees of the Respondent (who were not disabled) because of his panic attacks. This could probably be easily defended by the Respondent – they would state that the less favourable treatment was as a result of the hot-desking policy and that all employees were being treated the same.
The indirect discrimination claim would be slightly more difficult for the Respondent to defend. The Claimant would be asserting that a practice, criteria or provision placed disabled employees at a substantial disadvantaged as compared with employees who were not disabled, and that the Claimant himself suffered a disadvantage as a result of the hot desking policy. The original claim was dismissed because the Judge believed that the PCP (the hot-desking) had not placed the Claimant himself at a disadvantage as compared with non-disabled employees. At first glance, this would seem to be a strange decision. The PCP affected both disabled and non-disabled employees. However, it would have placed the Claimant at a particular disadvantage because of his condition. If the Claimant were to show that the PCP was discriminatory then the burden would fall on the Respondent to show that the hot-desking policy was a proportionate means of achieving a legitimate aim.
The third area of discrimination, failure to make reasonable adjustments, would appear to be a more fruitful avenue for the Claimant than the direct discrimination claim. The Respondent’s duty arises when a PCP, physical feature of lack of an auxiliary aid puts a disabled person at a substantial disadvantage relating to a relevant matter in comparison with persons who are not disabled. The PCP, again, is the hot desking policy. The Claimant would have to show that he was placed a t a substantial disadvantage by the policy as compared to non-disabled people. Again, from first glance this would appear to be the case. The Claimant’s testimony would clearly be that he could not cope with the policy and that it was placing him at a disadvantage as he could not work properly. The Respondent’s main line of defence would be that they did make certain adjustments. However, on the facts it is not clear what these were and it is therefore not possible to make a judgment as to the probability of such a defence succeeding.