Employers have broad control over workplace seating arrangements, including the use of hot-desking. That discretion is limited where the arrangement places a disabled worker at a substantial disadvantage.
A fixed workstation can be a reasonable adjustment under the Equality Act 2010. Current government guidance gives the specific example of allowing someone with social anxiety disorder to have their own desk instead of hot-desking. Acas also identifies exemption from hot-desking as an adjustment that may be straightforward and cost nothing.
The legal position still depends on the worker’s circumstances, the disadvantage caused by hot-desking and whether a fixed desk or another proposed adjustment would be practical and effective. In employment, the employer’s knowledge of the individual worker and their disadvantage is central.
Two cases provide particularly useful guidance: Roberts v North West Ambulance Service NHS Trust, UKEAT/0085/11 and Japal v London Borough of Islington, case 3328270/2017.
Roberts: the wider policy can still affect an exempt employee
Mr Roberts worked as an emergency medical dispatcher in a control room containing 24 workstations. Staff took whichever workstation was available when they began their shifts. He had anxiety and depression, characterised in the proceedings as social anxiety disorder, and found working close to other people difficult.
He asked to work at a particular position on the edge of the room. The ambulance service agreed to accommodate this, but the workstation could sometimes be occupied when he arrived because shifts overlapped and the control room could be full.
The first employment tribunal concluded that the hot-desking policy had not been applied to Roberts because he had been allowed to use his preferred position. In Roberts v North West Ambulance Service NHS Trust, UKEAT/0085/11, the Employment Appeal Tribunal found that approach legally wrong.
The policy still affected him because other employees continued to hot-desk. Their use of the room meant his preferred workstation was not always immediately available. A workplace practice can therefore place a disabled employee at a disadvantage even where the employer says that person is exempt from it.
Following the first appeal, the tribunal found that hot-desking was a provision, criterion or practice, usually shortened to PCP. It also found that the policy placed Roberts at a substantial disadvantage and triggered the duty to make reasonable adjustments.
Roberts ultimately ended with the employer succeeding. The tribunal found that supervisors took reasonable steps to make the workstation available, including moving another occupant when Roberts arrived. In the second Employment Appeal Tribunal judgment, UKEAT/0046/13, the EAT held that this was a conclusion the tribunal had been entitled to reach.
The second judgment explains that the question was whether the employer, viewed objectively, had taken the steps that were reasonable in the circumstances. It also records that the tribunal had found hot-desking to be a PCP which placed Roberts at a substantial disadvantage.
The events in Roberts were decided under the Disability Discrimination Act 1995, which preceded the Equality Act 2010. The case remains useful because it deals directly with the meaning of a workplace practice and the practical operation of the reasonable-adjustments duty.
Its significance should be stated accurately. Roberts supports the principle that a hot-desking system can create a substantial disadvantage even where a disabled worker is supposedly exempt. It does not establish that every failure to keep a preferred desk empty amounts to unlawful discrimination. Reasonableness remains a factual assessment.
Japal: a fixed desk should have been provided
The facts in Japal v London Borough of Islington, case 3328270/2017 provide a clearer example of an employer being held liable.
Debbie Japal had fibromyalgia and worked under Islington Council’s hot-desking arrangements. Her workstation needed to be set up with suitable equipment, including her chair and footrest. Without a fixed desk, she could be required to move that equipment herself, which could be painful or sometimes impossible because of her symptoms.
The council offered several adjustments. Equipment was provided, she was offered an additional day working from home when necessary, and a manager agreed to intervene if another employee occupied a suitable workstation.
That arrangement still left Japal having to find a suitable desk or ask management to remove someone from it. Her request for a dedicated workstation was supported by occupational health and workplace-assessment evidence over a prolonged period.
The tribunal found that the ordinary hot-desking policy placed her at more than a minor or trivial disadvantage compared with non-disabled colleagues. It also rejected the council’s argument that a fixed desk was impractical. The council’s own policy already allowed fixed desks for some disabled employees.
In its full written reasons, the tribunal concluded:
“Providing a dedicated workstation would have been a reasonable adjustment.”
The tribunal upheld Japal’s claim under section 20 and section 21 of the Equality Act 2010, which concern the duty to make reasonable adjustments and the consequences of failing to comply with it.
It also upheld her claim under section 15 of the Equality Act. Section 15 covers unfavourable treatment because of something arising in consequence of disability, unless the employer can show that the treatment was a proportionate means of achieving a legitimate aim.
The tribunal awarded £10,000 for injury to feelings, plus interest. Its formal judgment recommended that Japal be assigned a fixed desk of her choice which was properly set up for her needs. It also recommended training for managers on the hot-desking policy and the reasonable-adjustments duty.
Japal is a first-instance employment tribunal decision, so it does not carry the precedential weight of an Employment Appeal Tribunal judgment. It remains a useful factual example of how a tribunal may approach an employer that offers partial measures while leaving the underlying disadvantage unresolved.
An adjustment has to work in practice
Together, Roberts and Japal show why an employer cannot deal with the issue through labels alone. Calling someone exempt from hot-desking provides little protection if the workplace continues operating in a way that leaves the required desk unavailable or improperly configured.
The employer does not always have to keep a workstation unused throughout the previous shift. Roberts shows that practical arrangements can be enough where they reliably allow the worker to use the required position and the employer has taken the reasonable steps available.
Japal shows the other side of that assessment. Requiring a disabled worker to arrive early, move equipment, find a manager or ask another employee to leave a workstation may preserve the disadvantage that the adjustment is meant to remove. The employer must examine whether the arrangement actually works for the person concerned.
Acas says employers must make reasonable adjustments when they know, or could reasonably be expected to know, that someone is disabled and experiencing difficulty at work. It also says employers should make sure other people do what is required for an adjustment to work.
Practicality, effectiveness, cost, available resources and any effect on health and safety can all form part of the assessment. A large organisation with a written fixed-desk policy may find it particularly difficult to argue that reserving one desk is impossible without producing evidence to support that position.
Pressure and threats can form part of the evidence
Employment law deals with coercive conduct through specific causes of action. Repeated instructions to hot-desk, threats of disciplinary action, removal of an agreed workstation or pressure to abandon an adjustment request may support a claim under sections 20 and 21 where the employer has failed to remove a known disability-related disadvantage.
Section 15 may also apply where an employee suffers unfavourable treatment because of something arising from their disability, subject to the employer’s statutory justification defence. Harassment or victimisation may arise in some cases, although each has separate legal requirements. A disagreement over seating does not automatically satisfy those tests.
The employer’s knowledge and response will be central. Occupational health reports, workplace assessments and medical evidence can help establish what the employer knew, but an adjustment request does not depend on a particular form or set of words. Acas advises employers to listen to the worker, consider the person’s circumstances and confirm agreed adjustments in writing.
A worker asking for a fixed desk should explain the disadvantage created by hot-desking, the connection with their disability and how the proposed workstation would reduce that disadvantage. They should also keep records of requests, assessments, decisions and occasions when an agreed adjustment failed in practice.
Internal grievance procedures can be used, but they do not stop employment tribunal time limits. Anyone considering a claim should check the current Acas time-limit guidance promptly, particularly because discrimination time limits can depend on the date of the act complained of and whether the conduct formed part of an ongoing course of events.
Roberts and Japal do not give every disabled employee an automatic right to a permanently unused desk. They do establish a sound basis for challenging a hot-desking arrangement that creates a substantial disadvantage and continues after the employer knows that a practical adjustment is needed.
Further reading from The Reasonable Adjustment
- Autism, remote work and reasonable adjustments: what this tribunal actually said
- Equality Act 2010: understanding anticipatory and reactive duties
- What autistic applicants can ask for before a job interview
- LitiQuiz: a free Equality Act and Employment Tribunal revision tool
This article provides general information about employment law in England and Wales. It is not legal advice on an individual case.
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