In this episode, David Hossack and Clare McDairmant discuss the Employment Tribunal case McGrath v Bupa Insurance Services Limited, exploring whether issues surrounding an employee's preferred fixed desk in a hot-desking workplace amounted to disability-related harassment. They consider the Tribunal's decision and highlight practical lessons for employers on reasonable adjustments, clear communication, proactive management and the risks of relying on informal workspace arrangements.
MFMac's Employment team advises employers on disability discrimination, reasonable adjustments, workplace policies and employee relations. Combining technical expertise with practical, commercially focused advice, the team helps organisations navigate workplace challenges and reduce the risk of costly disputes.
David: Hello, and welcome to the MFMac Employment Podcast. I'm David Hossack, and I'm delighted to be joined today by my colleague, Claire McDairmant.
Clare: Hello. Thank you, David. I'm delighted to join you today to discuss this case.
David: It's an interesting case we're going to discuss today about the subject of hot desking, and hot desking has often been viewed as controversial. But what we're looking at today is a case which actually ended up before an Employment Tribunal where I suppose you could say the hot desking got the employer into hot water. So what was this case all about?
Clare: The name of the case is McGrath versus Bupa Insurance Services Limited. Mr. McGrath, was an employee. He was disabled. He had several conditions, namely ADHD, autism, dyslexia, and depression. The office where Mr. McGrath worked was mostly open plan, and his employer, similar to many organisations, operated a hot desking system. Desks could be booked using an online system, as is usually the case with most organisations.
In general, most people and teams regularly sat at the same place, although seats could not normally be blocked booked for extended periods. Again, that's often the case with many organisations. The employee, Mr. McGrath, he preferred to sit at a fixed place, and that usually meant at the same desk. The employee's preferred desk was in a quieter area, and it was near a part of the office called the "Academy".
This was an area where new staff were trained and sat with their coaches. The employee always worked in the office rather than at home. At the, the time, following COVID, the office worked in a hybrid working arrangement, and that meant that the office was relatively quiet, and it meant that he was usually able to book his specific desk.
If someone was sitting in his desk, either his manager or Mr. McGrath would ask them to move.
David: So that's very much an informal arrangement, Claire, where there was nothing set in stone about people moving. It was just asking questions about would you mind moving.
Clare: Yes, David, that's correct. So the desk wasn't permanently booked for him. There wasn't any notice put on the desk saying, "This is Mr. McGrath's desk." So it was a very much an informal arrangement. Because the office was quiet, it was usually achievable for him to be able to book this particular desk, so it was an informal arrangement.
David: And I think certainly that chimes with my own experience after COVID that going into the office to begin with, things were quiet. It was relatively easy to find a place and to perhaps if you really wanted to find the same place every time. But as things changed, it became more difficult to say, "I will be at the same place every day."
Clare: Yes, David that's correct. So this case was in March Twenty Twenty-Three, so it was following COVID, as you say. The offices were quite quiet, but we're starting to find that offices are getting busier now and certainly to be able to book that fixed desk can be more difficult.
David: So what happened then?
Clare: So what happened was in March Twenty Twenty-Three, Mr. McGrath, was sitting at his fixed desk. He was having a phone call with his manager. He was speaking loudly, and another manager became aware that his call was disturbing the trainees. The employee was asked to sit away from the "Academy", so from those trainees and from his particular fixed desk. He did that. So he did comply with that. However, the following week he returned to his original desk. When he was asked again to move, he did not do so. No further action was taken by the manager. Further incidents occurred where someone else sat at the employee's preferred seat. The employee was reminded that he could ask the person to move. However, it was only after the employee resigned that the employer actually took steps to reserve the seat for him permanently.
David: So the onus was very much placed on Mr McGrath to be asking for people to move rather than any steps taken by the employer to reserve his seat or to make other employees aware in some way that the desk was for Mr McGrath's use.
Clare: Yes, that's correct. It was very much an onus on him or on his manager who would sometimes help and would ask someone to move if they sat in his seat. It was far from an ideal situation. There wasn't any steps taken to reserve that seat permanently for him, or as you say, make other employees aware either by an internal circular or by a sign saying that this was his particular fixed desk.
David: So he resigned and he brought claims before an Employment Tribunal which included disability discrimination, victimisation and harassment and constructive unfair dismissal and that's really what this case was all about.
Clare: Yes. So the case had a number of other claims and as he did resign, he brought claims of disability discrimination. The case involved other related matters, but in relation to the matter of the desk, his claim was of harassment related to disability.
David: So what did the Tribunal make of this?
Clare: So the case went on for quite a long time. All his claims were unsuccessful. The claim of disability related to harassment which related to the issue of the fixed desk was unsuccessful.
Mr McGrath said that it was harassment related to disability when the manager asked him to move from his fixed desk. So the Tribunal dismissed that claim. The reason why his claim was unsuccessful was because the Tribunal held that the reason why the employee was asked to move was not related to his disability, but the reason was related to the volume at which he was speaking on the phone and the manager's concern that it was distracting others.
The Tribunal also stated that even if they had found that the request related to his disability, it did not have the purpose or effect of violating the employee's dignity or creating a hostile environment. Furthermore, they said that they would have also have found that it was not reasonable for it to have had that effect.
David: Why was that the case?
Clare: The reason for that is because they said that Mr. McGrath's employee accepted that he had been speaking loudly. So they said that's not related to his disability. The reason he was asked to move was because he was speaking loudly and was being disruptive to other trainees who were trying to learn.
They also said that the other manager had asked him politely. He had explained the rationale, the reasoning for the move, and that was the reason why it wouldn't have been reasonable for that to have had that effect. So that was the reason why the Tribunal came to that decision.
David: And of course, this is an Employment Tribunal case, and for the benefit of our listeners, this is not binding on other Employment Tribunals, but it's really quite informative to see the approach that's taken. And I think it's probably also very dangerous for employers to be saying hot desking "absolutely fine, there'll never be a problem arising from this," because as I say, it is very much related to that one case and to the facts of that case. So I suppose taking a few steps back, Claire, what do you think employers can take from this and what should they be thinking about?
Clare: Employers should be alert to these hot desking policies. They do highlight a number of practical points. They should be alert that there can be disability-related issues arising from these hot desking policies as some employees benefit from consistent routines or predictable workspaces. So some employees do benefit from having a fixed desk and a fixed location in the office and not having to change desks every day or every couple of days.
Hot desking policies may give rise to requests for reasonable adjustments, such as, as we've said, the allocation of a fixed desk. Organisations should be careful not to treat such requests as trivial. The disagreements about these seats can become part of wider discrimination complaints as we've seen in this case .
So what I would advise employers is obviously clear communication is important where a seating change is required for operational reasons, such as minimising disruption to other colleagues. To explain the rationale calmly and privately can help prevent these misunderstandings. Obviously consider any request for adjustments to have that fixed desk from an employer. In this case, as we have seen, the employer eventually reserved the desk for the employee, but he only did that after he had resigned. If the employer had intervened earlier, then this dispute may not have escalated, and it might not have ended up in an Employment Tribunal, which is obviously very expensive for an employer.
David: I'm thinking about all that you've said here, Claire. Clearly, policies around hot desking or I suppose processes around hot desking are going to be quite important here, and perhaps building in somehow to that process the possibility of an employee saying, "Actually, this isn't going to work for me." So maybe something in there saying, "If you've got any reason why you think you should have an allocated desk, then please raise this with us," so at least they're overt about that. And I'm also wondering about where the onus lies here. Does the onus lie with the employer to inquire or with the employee to volunteer the need for an allocated desk?
Clare: The duty to make reasonable adjustments is a proactive duty on the employer. So when the employer is aware or ought reasonably to be aware that an employee has a disability, and he might be placed at disadvantage by a particular provision, criterion, or practice, such as a hot desking policy, then the employer's under a duty to take steps to mitigate that disadvantage.
So I would say to employers that they should be proactive. I do think that having some kind of wording into a policy and let employers know that if they need a particular fixed desk because of a condition or health-related matter, just to speak to them. I do think that employees should also notify employers and should be advised to notify employers if they do need an adjustment to be made.
But employers should also be proactive in informing and notifying employees, and particularly if a manager is aware that a hot desking policy may affect a particular employee that they're managing, then they should be discussing that with them.
David: So perhaps in this situation, if they were to say, " Mr. McGrath, we're wondering about this new policy and whether it's going to work with you. What do you think?", A very open question like that might have been helpful. And as always with these things, sometimes a trial period to see if it does work is a good thing.
Clare: Yes. Totally. Mr. McGrath's manager was aware that he did need a fixed desk. He did explain to his manager that it would be helpful to have a fixed desk. So a conversation with Mr. McGrath and with his manager could have taken place. They could have given that trial period, as you suggested, and that would have helped in this case for them to be more proactive.
David: So it's a very interesting case, and very fact specific. I'm not sure if we've seen any others on hot desks, but I'm sure if anything else comes along, you might come back and join us to speak about it.
Clare: Yes, David, I would love that . I do think it might be something which we might see more in the future in Tribunals. We're seeing more and more employers have open plan offices with hot desking, and we're seeing more and more disability discrimination claims in the Employment Tribunals. So I do think it's likely that we'll see more of these cases. And yes, I'd love to come back and discuss that with you.
David: Well, thanks so much, Clare, and thanks everyone for listening. And just a reminder that we send out a free employment law e-news every month, and if you don't already subscribe, please email us at employment@mfmac.com and we'll get you added to that list. And we also do a number of webinars on a regular basis, and if you're interested in these, please search on our events at MF Mac, and you'll find out what's coming up.
So thanks again, Clare, and thanks everyone for listening. Please remember to subscribe to our podcasts and leave reviews in the usual way.
Clare: Thank you everyone, and thank you, David, for having me.
