Roberts v North West Ambulance Services UKEAT/0085/11/RN
Subjects: Disability Discrimination – Reasonable Adjustments – Meaning of Provision Criterion or Practice – Calculation of Pension Losses
C suffered from a social anxiety disorder. He resigned and alleged that the Respondent had failed to make reasonable adjustments for him under the DDA 1995. His claims of unfair constructive dismissal and disability discrimination were rejected. He appealed.
C was employed by R as a medical dispatcher. He worked with other medical dispatchers in a room with 24 workstations. The dispatchers had a complicated shift pattern and hot-desked. Initially C chose to work in the middle row but after some periods of anxiety he thought that he would be better placed at the back next to a window. His preferred seat was not always available. Although it was agreed a reserved sign should be placed on his desk this did not happen. His supervisors tried to reserve his desk before he arrived but often had to move people when the preferred seat was unavailable.
C claimed that the requirement to hot-desk was a provision, criterion or practice (PCP) applied by R. The ET held that R did not apply this PCP as C was not required to sit in any place other than his preferred seat. The ET also held that it was not practicable to keep the seat free and that R took reasonable steps to ensure C always sat in his preferred seat. Accordingly the ET held that he was not obliged to start his work until his desk was made available to him.
C argued that the ET had required that the PCP had to be applied to him and that this was unnecessary. Hot desking was a PCP that was applied by R and the ET should then simply have asked whether this placed C at a substantial disadvantage.
The EAT agreed with C's submission that the ET was not required to ask whether the PCP was applied to C and cautioned against asking a question which, in its view, would complicate or obscure the statutory test. The EAT remarked that there would be occasions when the PCP is applied to others but placed the disabled person at a substantial disadvantage even if not applied directly to them. The EAT allowed the appeal.
There are few cases dealing with the question of what is, and what is not, a PCP. The EAT in this case provides some rare guidance. It is interesting to consider the difference between the application of PCP in indirect discrimination cases and in reasonable adjustments cases. According to the EAT the PCP in a reasonable adjustments case does not need to apply to the claimant. Can this usefully be contrasted with the approach in indirect discrimination claims? $.19 of the EA 2010 prohibits certain conduct where ”A applies to B a provision, criterion or practice”. If this case was an indirect discrimination claim would it have failed or is the issue really about how the PCP is described?