Government worker with musculoskeletal condition was discriminated against after other employees used her desk, tribunal finds

Employer began disciplinary proceedings after claimant complained about specialist equipment being moved and adjusted by colleagues under hot desking policy

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A House of Commons employee with a musculoskeletal condition has won claims of victimisation and disability discrimination after her specialist desk equipment was used by other employees while she was off sick.

The London Central employment tribunal found that Ms A Baker’s employer failed to make reasonable adjustments after its hot desking policy meant that she had to readjust her equipment every time she returned to her desk.

She was also victimised after disciplinary proceedings were commenced following a request to keep her desk area separate to the hot desking policy. She was prevented from attending various meetings in late 2017 and early 2018, which also amounted to victimisation.

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Baker had worked for the House of Commons since 1991. In 2005, she was diagnosed with a musculoskeletal condition, and the Parliamentary health and wellbeing team recommended she use specialist equipment, including an orthopaedic chair, a specialist keyboard, mouse, number pad and reading/writing slope, in order to reduce the need for her to turn her neck. All of these items were provided by the respondent. 

In April 2014, she was appointed database manager for the Architecture and Heritage team. In December 2016, a job evaluation study concluded that her job title should be changed to ‘collections manager for the architectural fabric collection’.

The team was situated in 7 Millbank from early 2015, and moved within the building in April 2016, in what was originally supposed to be a temporary move.

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Baker was placed at a desk at the end of a row near the aisle. She raised this with HR on 19 April, requesting that she be moved to the other end of the row, near the window or wall, as she needed to avoid turning to move from people.

Her line manager at the time, Dr Collins, had chosen the other end of the row, and said “there was nothing I can do about it”. She was also told to accept the new seating arrangement by Mr Watrobski, who was the countersigning manager and Collins’ line manager.

Baker did not provide the tribunal with a reasonable explanation as to why she needed to sit near a window or wall, and her manager said that logically, she would need to turn her head less when sitting near the aisle. The tribunal found that she suffered no disadvantage from being asked to sit at the aisle end of the row.

Between April 2016 and July 2017, Baker’s symptoms of repetitive strain injury (RSI) returned. She first raised the issue of RSI and tendonitis on her neck and shoulder with Collins on 31 July 2017, and he requested a full occupational health assessment.

On 18 October, a report by the consultant occupational health physician, Dr Hashtroudi, concluded that her symptoms did not arise from work, however advised that she should avoid heavy lifting and overhead activities, including reaching her arm in an outstretched position.

On 8 November, she raised a grievance regarding the new seating arrangement.

On 18 December, a team meeting run by Mr Grant, who was Watrobski and Oyet’s line manager, and Collins was held, which Baker was not invited to attend.

Another meeting was held on 5 February 2018, which she also was not invited to. She attended, but was told she had to leave, and Watrobski refused to sit down until Baker left, leaving her feeling “humiliated in front of other attendees”.

On 28 June, Baker fell in the street and injured her knee. She was signed off work until 20 August. 

On 17 July, during the period of her absence, the outcome of her grievance was released. It found that Baker was excluded from House Collections managers’ meetings; that her job security was threatened; that during an occupational health meeting to discuss her needs on 3 November 2017, she was treated inappropriately; and that she was excluded from further meetings when she was temporarily working for another manager.

In the same report, the allegation that Collins and Watrobski misused their positions when she was denied access to an appropriate desk location was partially upheld. 

When Baker returned to work on 21 August, she found that all her work equipment had been “drastically altered or moved”, and “took this to be a personal threat towards her and a complete violation of her identity”.

She said that it was difficult to readjust the equipment to suit her needs. Grant told the tribunal that “office space was at a premium” and that there were “fewer than 0.8 desks per person”. He said that she could request assistance to readjust her equipment, and that it was not practicable to reserve her space for a month.

However an occupational health report on 6 September recommended that Baker “needs to have her own dedicated workstation that is set up correctly”, and that “adjusting the chair is quite challenging currently given [her] shoulder injury and restricted movement”.

Baker placed a polite note on her desk advising employees not to use it for hot desking. After returning from a one-day absence on 20 September, she found that someone had altered her equipment despite the notice. She reported this as a workplace injury and asked for it to be readjusted.

The day after, on 21 September, a decision was upheld to give Baker a first written warning, due to the fact that she had failed to carry out reasonable management instructions. On 27 September she was invited to a formal disciplinary investigatory meeting, which alleged that her polite note was unreasonable. 

However, this allegation was subsequently withdrawn and did not form part of the investigation. The tribunal found that the commencement of these proceedings caused her distress.

On 23 October, after a day off sick, Baker emailed HR about a doctor’s note relating to workplace stress and requested to notify occupational health. The letter from HR advised her line manager at the time, Mr Ugbana Oyet, to keep in regular contact with her during her absence, which was to be one month.

Oyet repeatedly contacted Baker during her absences, including via several letters asking her to fill out occupational health forms, which she said caused her “enormous stress”. However, she told the tribunal that she was not at her home address during this time period and so did not receive these letters.

On 26 November, Oyet informed Baker that he would be conducting a formal investigation into allegations that she unreasonably failed to comply with management instructions, and unprofessional behaviour. However none of these allegations related to the hot desking policy.

On 15 January 2019, Baker brought her claims against the respondent.

The tribunal found that Baker was victimised when Collins refused to interact with her during an isolated incident in June 2018. The respondent failed to provide reasonable adjustments when it failed to prevent her desk from being adjusted on 20 September.

It also found that she was victimised and subjected to discrimination arising from disability on 27 September, when the disciplinary proceedings were brought against her by Grant.

The tribunal found that during late 2017 and early 2018, the claimant was restricted from attending regular team meetings, and that this amounted to a detriment after she had raised a grievance. She was also a victim of discrimination arising from disability.

It found that her employer’s refusal to provide her with a seat near the window was not a failure to provide a reasonable adjustment. Other claims of victimisation, disability and sex discrimination, and sex and disability harassment were not upheld.

Adele Edwin-Lamerton, senior employment associate at Kingsley Napley, said that in this case, there was a "specific recommendation" from occupational health that Baker's desk should not be used as a hot desk, and that her employer had failed to follow this.

"Given office space is often at a premium, employers must consider when it would be reasonable to specifically allocate a desk to a disabled employee to avoid discriminating against [them]," she said.

A House of Commons spokesperson said: “The House of Commons strives to be an inclusive and supportive workplace, and is committed to ensuring that all staff are supported in their roles. We are unable to comment on individual staffing matters.” Baker could not be reached.