Roberts v North West Ambulance Service

For the reasonable-adjustments duty, a provision, criterion or practice may place a disabled employee at a substantial disadvantage even where it is not applied directly to that employee. The tribunal should follow the statutory questions: identify the PCP, determine whether it creates the required disadvantage in comparison with non-disabled persons, and, if so, assess what steps are reasonable.

The assessment must apply the statutory factors, including effectiveness, practicability, cost, disruption and resources. An employer’s promise to provide an adjustment does not discharge the duty merely because reasonable efforts were made to implement it. The guidance in Environmental Agency v Rowan was applicable.

Mr Roberts, a disabled emergency medical dispatcher, brought proceedings against his former employer alleging disability discrimination and unfair dismissal. He suffered anxiety associated with the hot-desking arrangements in the control room and sought a consistently available desk in a less prominent position.

The Employment Tribunal dismissed the claims. It held that hot-desking was not applied to Mr Roberts because he was permitted to use his preferred seat, and therefore concluded that the reasonable-adjustments duty did not arise. It also stated that the employer had taken reasonable steps to accommodate him.

On appeal, the central issues were whether the tribunal had applied section 4A of the Disability Discrimination Act 1995 correctly, whether it had properly assessed reasonableness under section 18B, and whether the matter should be remitted.

1. Appeal allowed and issue remitted. The Employment Tribunal erred in law in its application of section 4A(1) of the Disability Discrimination Act 1995.
2. Hot-desking was plainly a provision, criterion or practice applied by the Respondent. The broad statutory expression also included any arrangements under section 18D(2).
3. The relevant question was whether the PCP placed the disabled claimant at a substantial disadvantage in comparison with persons who were not disabled. Neither section 4A nor section 18B required the tribunal first to ask whether the PCP was applied directly to the claimant. A PCP applied to others may affect a disabled person and create the relevant disadvantage.
4. The Tribunal should therefore have considered whether the hot-desking arrangement placed Mr Roberts at a substantial disadvantage and, if so, what further steps it was reasonable for the Respondent to take. Its finding that the Respondent took reasonable steps to make the preferred seat available did not amount to a proper application of section 18B(1). If keeping the seat free was a reasonable adjustment, the duty required that adjustment to be made, rather than merely reasonable efforts to make it.
5. The medical evidence did not make the result plain and obvious. The competing considerations, including the possible effectiveness and practicability of providing a free desk, and the relevant cost, disruption and resources, were matters for the Employment Tribunal.
6. Applying Sinclair Roche & Temperley v Heard, as approved in Barke v SEETEC Business Technology Centre Ltd, the just and proportionate course was remission to the same Tribunal, if it could be reconstituted, with directions to reconsider the matter afresh under sections 4A and 18B.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s judgment dated 23 July 2010 and remitted the reasonable-adjustments issue.
• Employment Tribunal, Manchester: dismissed the complaints of unfair dismissal and disability discrimination.