Provision, Criterion or Practice (PCP) and disability.
The EAT has recently confirmed in Roberts v North West Ambulance Service NHS Trust, that in determining whether a provision, criterion or practice (PCP) places a disabled person at a disadvantage, one needs to examine the overall effect of that PCP on the disabled person, even if it is not applied directly to the disabled person.
Claimant, R, worked as an emergency medical dispatcher at the North West Ambulance Service (‘the Trust’) from January 2008 up until his resignation in January 2010. During this period, a system of ‘hot-desking’ was in place where dispatchers were not assigned a permanent workstation during their shifts, but sat at any workstation that was available.
The Claimant suffered from a psychiatric condition known as ‘social anxiety disorder’, which resulted in the Claimant taking periods of sick leave due to anxiety. The Claimant felt that a reason for his anxiety was due to the position of the workstation at which he often sat (it was in the middle of the control room). The Claimant therefore requested that he have a workstation reserved for him at the back of the room. The Trust agreed, although the use of a reserved sign, which the Trust had also agreed would be used, was not implemented. As a result on occasion when the Claimant arrived for work he found other dispatchers working at his reserved desk. On each occasion either the Claimant or his supervisor asked the occupant to move to another desk to allow the Claimant to work at his reserved desk.
When the Claimant arrived early for his shift on New Year’s Eve 2009, he found his reserved desk occupied. The occupant was asked to move by the supervisor to allow the Claimant to sit in his reserved seat for the evening shift. However, the Claimant subsequently drafted and handed in his letter of resignation during his shift.
Amongst other things, the Claimant alleged the Trust’s policy of ‘hot-desking’ was a PCP that placed the Claimant at a substantial disadvantage in comparison with non-disabled colleagues and that the Trust had failed to make reasonable adjustments in relation to his disability.
Section 4A of Disability Discrimination Act 1995 (DDA) – now s.20(3) of the Equality Act 2010, imposes a positive duty on employers to make reasonable adjustments where a PCP applied by an employer places a disabled person at a substantial disadvantage in comparison with a non-disabled person, so that the reasonable adjustments remove that disadvantage.
The Tribunal recognised the Claimant’s psychiatric condition as a disability for the purposes of the DDA.
The Tribunal did not uphold the claim of disability discrimination and found that the Trust’s hot-desking policy was not applied to the Claimant (he was exempt and was permitted to use the same desk) and therefore the PCP did not place the Claimant at a disadvantage. The Tribunal recognised it was not practicable to keep the Claimant’s desk reserved but found that the Trust took reasonable steps to ensure that every time the Claimant worked a shift he sat at his reserved desk, even if this required his supervisor to move a colleague to another desk.
Employment Appeal Tribunal judgment
On appeal the EAT found that the Tribunal had incorrectly applied s.4A of the DDA. It determined that whilst the policy of hot-desking was not applied directly to the Claimant, the policy still affected the Claimant as other dispatchers could sit at the Claimant’s reserved desk and therefore the Claimant was not always able to sit at his reserved desk. The EAT determined that the Tribunal erred by finding there was no substantial disadvantage because the PCP was not applied directly to the Claimant and rather the Tribunal should have considered whether the PCP, which was applied to his colleagues nonetheless placed the Claimant at a substantial disadvantage and, if so, whether the Trust took reasonable steps to remove the disadvantage.
However, the EAT noted with interest the medical evidence from the Trust’s expert psychiatrist, whose report stated:
“Avoidance behaviours entrench rather than relieve Social Anxiety Disorder. Adjustments to the work environment ultimately would prove to be counterproductive. I do not consider that any effective adjustment could have been made which would have resulted in Mr Roberts being able to continue to work…[as an] Emergency Medical Dispatcher"
The EAT ruled that the matter should be remitted back to the same Tribunal to reconsider these issues.
Important points to note
- When determining whether a provision, criterion or practice places a disabled person at a disadvantage, it is important to look at the overall effect of it and whether it affects the disabled person at all, even if that person is exempted from it directly.
- This means that employers should give careful consideration to the wider impact that a PCP might have on the working environment, for example, how if it affects practical working arrangements or even the culture of the organisation, in order to assess whether or not it could indirectly disadvantage a disabled employee and therefore create exposure to a disability discrimination claim.