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An employment tribunal has ruled that a House of Commons employee with a longstanding musculoskeletal (MSK) condition was victimised and subjected to discrimination after her employer brought ‘heavy-handed and punitive’ disciplinary proceedings against her.
The House of Commons Commission’s disciplinary action was in response to a polite note employee Alison Baker had left on her desk on 27 September 2018 asking staff to refrain from using her workspace as a hot desk.
The London Central employment tribunal also found that the commission had ‘failed to make a reasonable adjustment when it failed to prevent use’ of Baker’s desk as a hot desk on 28 September 2018 during her short absence.
A report by Maggie Mainland, an occupational health adviser, dated 6 September 2018, had recommended that Baker’s desk, which was set up for her MSK disability, should not be used as by other employees. However, the commission failed to ensure this happened.
Written warnings
The tribunal’s judgment, published in April 2022, noted that, although it was not reasonable for her employer to keep the desk free for an extended time, it was reasonable to ask employees not to use Baker’s desk when she was away from it for shorter times ‘given that the claimant would have had to readjust her equipment each time it was altered’.
Baker, who was working as collections manager for the Architectural Fabric Collection at the time, had first been given a written warning on 26 June 2018. Managers began disciplinary proceedings after alleging that her polite note was unreasonable.
In its ruling, the tribunal ruled that Baker ‘would reasonably have considered that her continued employment was potentially prejudiced.
‘She would reasonably have felt worried and threatened by the commencement of disciplinary action.’
The tribunal added that the disciplinary action was a ‘heavy-handed and punitive response to the claimant’s note’.
Baker who had worked for the respondent since 1991 and was diagnosed with an MSK condition in 2005, presented her claims of victimisation and disability discrimination on 15 January 2019 after a series of issues that started in April 2016.
Orthopaedic arrangements
The tribunal heard that, after Baker’s diagnosis in 2005, the Parliamentary Health and Wellbeing Service team recommended that she be provided with specialist equipment, including an orthopaedic chair and a specialist keyboard, mouse, number pad and reading/writing slope. ‘The orthopaedic chair was able to swivel, to reduce the need for Baker to twist her back or neck.’ Her employer provided all of the recommended equipment.
In early 2015, Baker’s team was moved from their location in Tothill Street to Millbank. However, in April 2016, in what was intended to be a temporary arrangement, the team was moved to a new location in the building.
Baker, ‘who, for many years had been placed at a desk at the end of a row and by a window or wall, was now placed at the end of a row, beside an aisle’.
Baker told the tribunal that her symptoms of repetitive strain injury (RSI) returned between 2016 and July 2017. After she raised the issue with her line manager Mark Collins, he requested a full occupational health assessment.
Dr Ali Hashtroudi, consultant occupational health physician, produced a report on 18 October 2017, which drew a number of conclusions.
The tribunal found that Dr Hashtroudi advised that the claimant’s ‘shoulder pain was unlikely to be related to work’ and that, while Baker ‘described her neck symptoms as RSI, this did not accord’ with his professional experience.
He advised that the claimant should use a ‘hands-free cable’ when using her mobile phone. He did not specifically advise that a Bluetooth headset be provided for her mobile phone.
On 8 November 2017, Baker presented a formal grievance against her managers Mark Collins and Adam Watrobski, claiming that they had failed to provide reasonable adjustments during the April 2016 office move, which had resulted in an RSI workplace injury and ‘that they had treated her unfavourably by failing to cooperate with putting reasonable adjustments in place’. She also complained of bullying and harassment by them.
‘Violation of identity’
That same month, Ugbana Oyet took over as Baker’s new line manager. On 18 December the House Collections managers held a meeting to discuss Baker’s case but did not invite her to attend.
When Baker turned up at a second meeting, which she had also been excluded from, on 5 February 2018, she was told to leave.
A few months later, on 28 June 2018, she fell over in the street, injuring her knee and was signed off work until 20 August.
While she was on sick leave, the outcome of her grievance was released. This found that Baker had been excluded from the meetings; that her job security was threatened; that she was treated inappropriately during an occupational health meeting to discuss her needs on 3 November 2017; and that she was excluded from further meetings when she was temporarily working for another manager.
When Baker returned to work on 21 August after her month’s absence, she discovered that all of her specialist 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 told the tribunal that it was ‘difficult for her to readjust all her equipment to be suitable for her needs.’
Disciplinary investigation
Although Donald Grant, director (property, planning and design) had told the tribunal that ‘office space was at a premium’ and that it was not practicable to preserve her desk ‘for an extended period such as a month’, Mainland’s September 2018 report had recommended that Baker ‘needs to have her own dedicated workstation that is set up correctly’.
It added that ‘adjusting the chair is quite challenging currently given [her] shoulder injury and restricted movement’.
After positioning a note on her desk to request that colleagues not use her specialised work equipment for hot desking, she returned from a one-day absence to attend a medical appointment and discovered someone had altered her equipment despite the note. Baker reported this as a workplace injury and arranged for someone to readjust her chair.
The next day, Grant sent Baker an invitation to a formal disciplinary investigatory meeting, including ‘an allegation that the claimant had unreasonably placed a note on her desk to prevent its use as a hot desk’.
The allegation was subsequently withdrawn and was not included in Oyet’s formal investigation. However, the tribunal found that the incident had caused Baker distress.
In its ruling, the employment judges rejected a number of other sex and disability discrimination and harassment claims that Baker had brought.
Significantly, she had claimed that her disability prevented her from undertaking repetitive tasks. However, the tribunal ruled that Baker was ‘refusing to do the work, rather than she was unable to’.
The tribunal also rejected Baker’s claim that Oyet had discriminated against her because he had instructed her ‘to record her working times on a weekly schedule for the duration of his line management’. The claimant had told the tribunal that ‘she was the only employee who was required to do this and that Oyet had devised this system specifically for her’.
Oyet had told the tribunal that he had done this because Baker ‘had not done any work from 19 February 2018’. The tribunal accepted this evidence.
It found that the claimant did not undertake a task processing CDs that Oyet had given her and had no good reason for failing to do this. ‘Her failure to carry out the work did not arise from her disability,’ the tribunal found, which accepted Oyet’s evidence that ‘the claimant had autonomy to organise the way in which she undertook tasks, not autonomy to decide to do other work’.
The tribunal found that there was ‘no evidence that other employees were similarly failing to carry out the work which they had been instructed to take, but were not subject to monitoring’.
It concluded that Oyet had started to supervise her work and time management because ‘she, uniquely among employees, had not been producing work. This was the only reason.’
Repeated contact
On 23 October 2018, a day after going off work sick, Baker had emailed HR with a doctor’s note relating to workplace stress. The note said that her doctor had advised her to notify occupational health rather than her temporary line manager ‘to reduce any further impact of stress’.
After being informed by HR, Oyet sent emails to Baker attaching an occupational health referral form for her approval and asked her to sign and return the form. If she failed to do this, he would have to ‘schedule a long-term sickness meeting and continue with the disciplinary process’. Oyet also sent several letters asking her to complete the form.
Baker told the tribunal that Oyet’s repeated contact while she was off sick caused her ‘enormous stress’. However, she also informed the tribunal that she was not at her home address during this time period and so did not receive his letters. She did not sign the occupational health referral forms and did not attend any of the meetings she was invited to.
On 26 November 2018, Oyet informed Baker that he would be undertaking a ‘formal investigation into allegations of failure to comply with reasonable management requests and unprofessional behaviour’. This did not include the allegation that the claimant had asked employees not to use her desk as a hot desk. On 15 January 2019, Baker brought her claims.
Responding to the ruling, 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.’
A remedy hearing will be held at a later date.
