Under Section 4A of the Disability Discrimination Act 1995 (DDA), employers had a duty to make reasonable adjustments if a provision, criterion or practice (PCP) placed a disabled worker at a substantial disadvantage compared with persons without a disability. Under Section 20 of the Equality Act 2010, which has now replaced the DDA, this duty remains largely the same.
The recent case of Roberts v North West Ambulance Service is an example of a case where a PCP that applied to other workers had a substantial effect on a disabled person, even though it did not apply to him directly.
Nathan Roberts was employed by North West Ambulance Service NHS Trust as an emergency medical dispatcher between January 2008 and January 2010, when he resigned. He suffered from a social anxiety disorder, which meant that he was a disabled person for the purposes of the DDA. He worked in a control room containing 24 work stations. The dispatchers worked on a complicated shift system, with various changeover times and overlapping shifts, so they ‘hot-desked’ – took any available work station – rather than having allocated desks. At first, Mr Roberts chose to sit in the middle row in the control room. After periods off work with anxiety, however, he thought this location might be the cause and asked to sit in a less prominent position at the back of the room. His employer wrote to managers asking them to ensure that Mr Roberts could sit in this position when on duty and to reserve it for him if necessary. This did not always happen, however, so an agreement was reached that a ‘reserved’ sign should be put on the desk prior to Mr Roberts’ shift. This proved difficult in practice as at busy times there was a need to use every single work station in the control room. On three occasions, Mr Roberts’ preferred seat was not available and either he or the supervisor had to ask the occupant to move. After the last of these occasions, Mr Roberts resigned and brought a claim for disability discrimination on the ground that the requirement to ‘hot-desk’ was a PCP that placed him at a substantial disadvantage in comparison with non-disabled people and that North West Ambulance Service had failed to make reasonable adjustments.
The Employment Tribunal (ET) dismissed Mr Roberts’ claim on the ground that he was not required to sit at any desk other than the one he preferred. As the PCP had not been applied to him, the duty to make reasonable adjustments did not arise.
The Employment Appeal Tribunal (EAT) disagreed. In its view, the ET had erred in law in its application of Section 4A of the DDA. The ET should have followed the statutory wording and asked whether the PCP applied by North West Ambulance Service placed Mr Roberts at a substantial disadvantage in comparison with workers who were not disabled. If so, had his employer taken reasonable steps to prevent this? A PCP may affect a disabled person even if it is not applied to them directly.
The case was remitted to the same ET to reconsider the claim.
Contact DFA Law employment law expert Gary Lee on 01604 609 576 for advice on any employment law matter.