Hot desking – a warning for employers
The pandemic has led to many employers introducing changes to the way in which employees work. Changes might include, for example, moving away from traditional office-based working and an introduction of hybrid working and hot desking.
The Equality Act 2010 imposes a duty on employers to make reasonable adjustments to premises or working practices where a disabled employee is placed at a substantial disadvantage. A disadvantage is substantial if it is “more than minor or trivial”. Whether an employee is placed at a substantial disadvantage depends on the individual facts of the situation.
Ms B had a musculoskeletal condition. The employer provided her with equipment to use at work. This included an orthopaedic chair, specialist keyboard, mouse, number pad and reading/writing slope. The chair was able to swivel, to reduce the need for Ms B to twist her back or neck.
Ms B was signed off work for a month. When she returned to work, she found that her equipment including her desk, chair and workstation, had been altered or moved. She raised this with her employer, which responded that her desk would have been used by people hot desking. A later Occupational Health report recommended that Ms B’s desk should not be used as a hot desk, and that Ms B needed to have her own dedicated workstation that was set up correctly. The report also stated that adjusting the chair was challenging for Ms B given her restricted movement and a shoulder injury.
Ms B placed a polite note on her desk saying that it should not be used for hot desking. On return to work after a one-day absence, she found that someone had altered her workplace adjusted chair, despite her polite notice. The employer later sent Ms B an invitation to a formal disciplinary investigatory meeting, which included an allegation that she had unreasonably placed a note on her desk to prevent its use as a hot desk after being told that it could not be reserved exclusively during extended absence.
Ms B issued various Claims in the Employment Tribunal, including that her employer had failed to make a reasonable adjustment when it failed to prevent the use of her desk as a hot desk. It was conceded that Ms B was a disabled person under the Equality Act 2010. Ms B argued that on her return to work following her absence, it was difficult for her to readjust all her equipment to be suitable for her needs. The employer argued that office space was at a premium and that there were fewer than 0.8 desks per person. It argued that preserving Ms B’s desk for an extended period such as a month was not practicable; and that Ms B could easily ask for assistance to readjust her equipment.
The Tribunal found that the employer had a practice of allowing hot desking on all desks and that Ms B would have been placed at a substantial disadvantage by this practice. Her workstation and equipment had been adapted for her needs and other employees altered her equipment so that it was no longer safe for her to use. This exposed her to risk of injury and was more than a minor disadvantage.
It found that preventing hot desking for an extended period, such as a month, was not a reasonable adjustment. There were not enough desks for all employees and keeping one desk empty for weeks at a time was not practicable. Ms B could relatively easily get help on her return to reinstate her workspace.
However, asking employees not to use Ms B’s desk when she was away for shorter times was reasonable, given that she would have to readjust her equipment each time it was altered. The Tribunal found that the employer failed to make a reasonable adjustment when it failed to prevent the use of Ms B’s desk as a hot desk during her absence of one day. The OH report explained that Ms B had difficulty readjusting her own equipment. The employer knew of the disability and knew that changing Ms B’s equipment put her at a substantial disadvantage. The Tribunal also found that commencing disciplinary action against Ms B for leaving a polite note on her desk was victimisation.
This judgment is an Employment Tribunal level judgment and is therefore not binding on other Tribunals. However, it serves as a useful reminder to employers that when considering making changes to the work environment, they should not lose sight of any obligation to make reasonable adjustments for employees who have disabilities.
If an employer is aware or suspects that one of its employees may have a disability, it is important to seek medical advice. Although any decisions regarding reasonable adjustments will ultimately be for the employer, medical advice can provide essential guidance. It is also important to consult with an employee in order to reach a reasonable decision in relation to any adjustments required. A failure to follow recommendations, and to listen to information provided by an employee, may lead to a successful claim.
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A Baker v House of Commons Commission
29 April 2022
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