Mr P Wilson v Commissioners for HM Revenue & Customs: 3205406/2022

EMPLOYMENT TRIBUNALS

Case No 3205406/2022

Between

Mr P WilsonClaimant

Commissioners for HM Revenue & CustomsRespondent

Before

Employment Judge Howden-Evans

Members

Ms M. Daniels

Ms A. Berry

In person for claimant

Mr Chegwiden (instructed by Counsel) for respondent

Self-representing for claimant

Mr Chegwidden for respondent

Mr T. Wilkinson - counsel for respondent

Date 14 March 2025

JUDGMENT

The Claimant’s complaints of age discrimination and victimisation are res judicata. They are therefore dismissed. The Claimant’s complaint of disability discrimination (failure to make reasonable adjustments) remains to be determined in these proceedings. Employment Judge Howden-Evans Dated: 11th June 2023 Case Number: 3205406/2022 EMPLOYMENT TRIBUNALS Claimant: Paul Wilson Respondent: Commissioners for HM Revenue and Customs Heard at: East London Hearing Centre On: 8 October 2024 Before: Employment Judge Sugarman Appearances For the Claimant: Self-representing For the Respondent: Mr Chegwidden JUDGMENT

[1]The Claimant was not disabled within the meaning of s6 of the Equality Act 2010 by reason of “stress” in the relevant period (from April 2022 – July 2023) and the claim of a failure to make reasonable adjustments in respect of that condition fails and is dismissed.

[2]For the avoidance of doubt, the Claimant’s claim of a failure to make reasonable adjustments for the disability of “osteo-arthritis” continues, the Respondent having admitted that the Claimant was disabled by that condition at the relevant time. Employment Judge Sugarman Dated: 10 October 2024 Case Number: 3205406/2022 EMPLOYMENT TRIBUNALS Claimant: Mr P. Wilson Respondent: Commissioners for HM Revenue and Customs Heard at: East London Hearing Centre (via CVP) On: 12, 13 and 14 March 2025 Before: Employment Judge G. King Members: Ms M. Daniels Ms A. Berry Representation For the Claimant: In person For the Respondent: Mr T. Wilkinson - counsel

REASONS

[1]By a Claim Form dated 11 October 2022, the Claimant brought claims of age discrimination, disability discrimination, and “all the victimisation, and claims as reported in the Claimant’s previous ET1 dated 26/10/2024 under Acas Certificate number R172633/21/43”.

[2]All matters other than the ones set out below were determined by the Tribunal at preliminary hearings on 22 March 2023, 28 June 2024, 8 October 2024 and 14 February 2025.

[3]The issues that remain to be determined by the Tribunal are set out in the List of Issues at [69]. In the present claim, the Tribunal is considering at four auxiliary aids:2.3.1 Ergonomic chairs;

2.3.2 Ergonomic mouse; Case Number: 3205406/2022 2

2.3.3 Two screens;

2.3.4 Adjustable desk.

[4]The claim is that, from 21 April 2022 onwards, the Respondent either failed to provide these auxiliary aids or, where they have provided them, that they failed to provide them within a reasonable timeframe.

[5]The Respondent concedes that the Claimant was disabled and that the Respondent knew about his disability. What the Respondent does not concede is that the Claimant was placed at a substantial disadvantage without the above auxiliary aids.

The Hearing

[6]The hearing took place via CVP.

[7]The Tribunal was assisted by a 242-page bundle prepared in advance of the hearing. Pages from this bundle are noted in square brackets, e.g. [1];

[8]The Tribunal heard witness evidence from the Claimant and from Mark Hudson, Gary Lynch and Jason Orchard on behalf of the Respondent.

[9]References to witness statements are designated as witness initial followed by paragraph number, e.g. [PW 1] for the Claimant’s witness statement, paragraph one.

Findings of Fact

[10]The Tribunal only needs to make findings when these are relevant to the issues before the tribunal. This section is therefore not a full history of the Claimant’s employment with the respondent during the relevant period, but only a summary of key facts and any findings on disputed facts that are relevant. The legal interpretation of non-disputed facts or findings made here are discussed in more detail in the ‘Deliberation’ section below.

[11]At the time of the hearing, the Claimant remained employed by the Respondent as an Investigation Officer. The role of Investigation Officer involves a wide range of desk-based duties, including the analysis and preparation of written material, and operational activities such as searching premises, undertaking arrests and conducting interviews.

[12]Mark Hudson was the Claimant’s line manager between March 2022 and April 2023. The Claimant had previously brought an Employment Tribunal claim against the Respondent, but Mr Hudson had no involvement in this.

[13]Gary Lynch took over as the Claimant’s line manager from April 2023.

[14]Jason Orchard was the Claimant’s line manager for six months, during the Claimant’s temporary promotion to Estates Security, from September 2023 until April 2024. Mr Lynch was the Claimant’s line manager before and after this period. Case Number: 3205406/2022 3

[15]The Claimant’s role is split between working from home and working from the Respondent’s premises one day per week. His role did involve some travelling. The Claimant could not travel too far or regularly, and also preferred not to travel in peak rush hour periods, and the Respondent was aware of this.

[16]The period of the claim begins on 21 April 2022. This is the date of an occupational health report in respect of the Claimant. [117 – 118] the section “Summary and Advice” makes the following points: “Vulnerability to stress; DSE breaks; manual handling; extra time; travel; performance targets;”.

[17]The report does record that the Claimant says his DSE in the office and at home is unsupportive. It says if a DSE assessment is required, then link if provided. The Tribunal understands that the Respondent has its own internal DSE assessors and, as a matter of policy, uses them rather than external assessors, in order to save costs. This is entirely reasonable.

[18]The OH report goes on to say: “Aside from the above he is best placed to know what kind of adjustments may be needed in view of her [sic] current or indeed future symptoms.”

[19]This OH report doesn’t recommend a chair, nor does it demonstrate that the Claimant is asking for a chair. It says he is best placed to know what kind of adjustments may be needed.

[20]The Tribunal accepts that Mr Hudson did not see this report until sometime in the middle of May. He could not give an exact date, but The Tribunal accepts that it was around this time.

[21]The Claimant put it to Mr Hudson that the Respondent’s guidance states that, because the Claimant has a long-term condition, he should have regular referrals to OH. This is not what the guidance says. The guidance is on [240] and says: “It is good practice to check in periodically with jobholders to understand how their condition is being managed and whether any agreed adjustments are working for the jobholder and the business.” There is nothing there that mentions OH referrals, merely “check ins” with managers “periodically”.

[22]About a week later, Mr Hudson became aware they the Claimant was, as far as Mr Hudson knew, going to have an operation in June. The Tribunal acknowledges that the June operation didn’t actually happen, but the Tribunal accepts that Mr Hudson believed it would. Mr Hudson says this is why he did not refer the Claimant to OH for any further assessment. There was no further assessment recommended in the 21 April 2022 report, and we accept Mr Hudson’s evidence regarding his thought process concerning the Claimant operation. He believed the Claimant was about to undergo a hip replacement, and the Claimant’s condition would hopefully be improved after this. The operation would, of course, necessitate a period of recovery. Case Number: 3205406/2022 4

[23]Mr Hudson’s logic was that there would be no point in obtaining an OH assessment either prior to the operation or during the recovery period, as the information from that referral would only be useful for a short timeframe. Mr Hudson was waiting for the Claimant’s condition to stab. before any referral to OH was made. The Tribunal is satisfied that this is a perfectly reasonable management decision and perfectly reasonable welfare decision.

[24]As it transpired, the scheduled operation in June did not go ahead and it was rescheduled for September. The Respondent was aware of this. Unfortunately, the September operation was also cancelled on 27 September. It was rescheduled for 15 November, which the Claimant told Mr Lynch and Mr Hudson about on 6 October [121]. It was therefore reasonable for Mr Hudson’s logic to continue, i.e. waiting till the Claimant’s condition had stabilised, and therefore to not to refer the Claimant to OH until after his operation and the required period of recovery.

[25]Chronologically, it is at this point that the Claimant entered into early conciliation with ACAS and then presents his ET1 dated 19 October 2022. In that ET1 he attempted to include matters that previously had been ruled upon in a previous claim. He also states in the ET1: “the Respondent arranged, at the Claimant’s behest, a health assessment which was carried out on 21/04/2022. To date, not all the recommendations have been followed.”

[26]Following the Claimant’s operation, there was a phased return agreed between Mr Hudson and the Claimant. This phased return did not involve the Claimant coming into the office. The phased return came to an end around the end of March 2023.

[27]On 5 April 2023 [137] a Stress Management Plan was completed. It contained the phrase: “GL will review DSE checklist and forward on PW behalf and seek an appropriate assessment from DSE assessor for both office and home”.

[28]The DSE checklist was completed on 5 April 2023 [144]. This is for employees to complete. It says on [144] “everyone in HMRC must carry out a DSE assessment” and “you must complete this checklist as part of assessment and send it to your manager to discuss and review”. The Tribunal is satisfied that it is for employees to complete their own assessment.

[29]In his assessment, the Claimant says he requires a DSE assessor to review in respect of various points. He does refer to an ergonomic chair and says he needs a DSE assessor to review this too.

[30]The Tribunal is satisfied that this is the first time the Claimant raised that he needs an ergonomic chair. The Tribunal is also satisfied that the OH report of 21 April 2022, which the Claimant refers to in his ET1, did not make any recommendations in respect of an ergonomic mouse, two screens, or height adjustable desk. Case Number: 3205406/2022 5

[31]DSE assessor Paula Lockyer assessed the Claimant [158] on 19 April 2023. Her report at [159] includes the comment “Paul requires a like for like environment for home as it would be in the office”. [159] also records there are no concerns reported for the office environment nor the home environment. It also records there are no concerns in relation to screens.

[32]At [160] a mouse is mentioned. Ms Lockyer acknowledges that OH is going to assess the Claimant regarding a chair. At [161], the report says the work and home environment should be “similar” (not the same) and “I did talk to Paul about an adjustable desk at home which would be preferable to move about when necessary”. This is not a clear recommendation, and also says it is OH who will assess this. [161] records that no OH advice had been taken in relation to the DSE assessment.

[33]There was an OH assessment in relation to the Claimant [122 – 127] on 20 April 2023. The OH advice does not recommend any equipment.

[34]A Work Station Assessment [169] from OH was carried out by Anthony Hylton on 22 May 2023. An ergonomic chair is recommended. The Tribunal is satisfied that the first time the Respondent became aware that there was a specific recommendation for an ergonomic chair was in the OH Work Station Assessment of 22 May 2023. Following this, a chair was ordered and was delivered on 4 July 2023.

[35]In October 2023, the Claimant secured a temporary promotion until 28 April 2024, under the direct line management of Mr Orchard.

[36]The Claimant applied for ill health retirement on 11 October 2024. His application was subsequently rejected.

[37]The Claimant completed a workstation passport [188] sometime after 30 October 2023. It must be after this date, as this date is referred to in it.

[38]Mr Lynch also filled out part of the Claimant’s application for ill health retirement, in his capacity as the Claimant’s line manager. Within this, he stated that two screens and an ergonomic mouse had been provided to the Claimant, as this was his belief at the time. The Claimant commented on this on 25 November 2024 and explained that these items had not in fact been provided to him.

[39]Two monitors and an ergonomic mouse were ordered by Mr Lynch [228 – 235] and the Claimant collected them from the office in December 2024.

[40]Mr Lynch attempted to order a hight adjustable desk for the Claimant on 28 November 2024, but received a message from the Respondent’s ordering team stating: “we are unable to approve OH recommended height adjustable desks for home via myBUY unless the member of staff is a contractual homeworker as stated in the guidance. Case Number: 3205406/2022 6 The route you need to follow for OH recommended desks is Getting essential kit to work at home” [226].

[41]The Claimant was not a contractual home worker so the Respondent could not supply him with a hight adjustable desk from its own suppliers (MyBUY). Mr Lynch told the Claimant that the process would be for the Claimant to buy a height adjustable desk himself and to claim the cost back as an expense. As of the date of this hearing, this has not yet happened.

Relevant Law

[42]Section 20 of the Equality Act 2010 provides:(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.

(2) The duty comprises the following three requirements.

(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. …….. (11) A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service.

[43]The EHRC Code of Practice on Employment (2011) at paragraph 6:13 says that an auxiliary aid is something which provides support or assistance to a disabled person. It can include provision of a specialist piece of equipment such as an adapted keyboard or text to speech software. Auxiliary aids include auxiliary services for example the provision of a sign language interpreter or support worker.

[44]Section 21 provides: Case Number: 3205406/2022 7(1) A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments.

(2) A discriminates against a disabled person if A fails to comply with that duty in relation to that person.

(3) A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.

[45]In circumstances where the absence of an auxiliary aid places a disabled person at a substantial disadvantage in relation to a relevant matter when compared with persons who is not disabled, the employer is under a duty to take such steps as are reasonable for it to have to take in order to avoid the disadvantage. The test of reasonableness in this context requires an objective standard.

[46]The EHRC Code of Practice on Employment (2011) lists factors which might be taken into account when deciding if a step is a reasonable one to take, including, whether taking any particular steps would be effective in preventing the substantial disadvantage, the practicability of the step, the financial and other costs of making the adjustment and the extent of any disruption caused, the extent of the employer's financial or other resources, the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and the type and size of the employer. Acquiring or modifying equipment for work purposes is given as an example of a reasonable step for an employer to take to make adjustment for a disabled worker.

[47]In Mallon v Aecom Ltd

2021 ICR 1151

, EAT, the claimant had dyspraxia and argued that he required a reasonable adjustment to make his job application orally rather than online. The EAT held that an employment judge had erred in striking out the claim on the ground that the claimant would not be able to establish that the PCP of requiring an online application placed him at a substantial disadvantage in comparison with people who are not disabled. As a litigant in person, he had not put his claim as either a PCP or auxiliary service case but had simply stated that he needed to be allowed to make an oral application rather than having to complete an online form because of his dyspraxia. The EAT decided that the Employment Tribunal had been wrong to interpret his claim solely as a PCP claim, and that it could have been interpreted as an auxiliary service claim under section 20(11).

[48]For the purposes of the Equality Act 2010 “auxiliary aid” is drawn widely. It can include technology such as software or hardware. An auxiliary service can include service such as personal assistant, support worker or interpreter.

[49]There is no obligation on the disabled person to say what the adjustment should be. It is for the employer to assess the disadvantage and seek to remove it. However, the EAT found in Project Management Institute v Latif

[2007] IRLR 579

, EAT that while the nature of the adjustment that is lacking Case Number: 3205406/2022 8 need not itself come from the claimant, it does seem that there must at least be before the Tribunal facts from which, absent any innocent explanation, it could be inferred that a particular adjustment could have been made. Otherwise, the respondent would be placed in the “impossible position” of having to prove the negative proposition that there was no reasonable adjustment that could have been made. Further, the EAT emphasised the importance of Tribunals confining themselves to findings about proposed adjustments which are identified as being in issue in the case before them in Newcastle City Council v Spires

UKEAT/0034/10

[50]If nothing the employer can do will have the effect of getting the disabled person back to work, it cannot be reasonable for the employer to have to do anything at all. The adjustment must have a prospect of removing the disadvantage. It does not need to be a good or real prospect, just a prospect, that if the reasonable step were taken the disadvantage might be removed. Leeds Teaching Hospital NHS Trust v Foster

UKEAT/0552/10

, [2011].

[51]The purpose of an adjustment is to enable or facilitate a return to work, to give the employee a chance of that, and if the adjustment will not achieve that purpose then it cannot be reasonable for the employer to have to make it. Conway v Community Options Ltd

UKEAT/0034/12

, [2012]. It will be a matter for the Tribunal as to at what point in a period of deterioration in a degenerative condition the situation becomes irretrievable, so that the adjustment will not facilitate or enable work. Until that point the duty to make adjustments persists. Where the stage had been reached that the consequences of the disability were irretrievable the duty to make adjustments was therefore said to have fallen away HM Prison Service v Johnson

[2007] IRLR 951

[52]To prove, therefore, that the Respondent was in breach of the duty to make reasonable adjustments in the circumstances of the present case, the Claimant has to show:a. that there was some “auxiliary aid” (which is broadly defined; and it is not in dispute that everything in the List of Issues would fall within that definition) that he could have been provided with;

b. that not having that auxiliary aid meant he was “likely to be” (which means could well be) put at a “substantial” (which means more than minor or trivial) disadvantage by some aspect of his employment, compared to an employee of the Respondent without his disability;

c. that, at a relevant time, providing him with that auxiliary aid was a reasonable step for the Respondent to have to take. In determining whether it would be reasonable for the Respondent to have to provide the auxiliary aid, it is necessary to consider the Respondent’s position and not just the Claimant’s: see Lincolnshire Police v Weaver

[2008] UKEAT 0622

07 1903.

[53]Even if the Claimant successfully shows all of these things, the Respondent will defeat the claim if it shows that it did not know and could not reasonably Case Number: 3205406/2022 9 have been expected to know that the Claimant was likely to be (again meaning could well be) placed at that disadvantage (it is unclear why the word used in the Equality Act 2010 schedule 8, paragraph 20 is “placed” when the Equality Act section 20 uses “put”, but they clearly mean the same thing in their contexts). Deliberation

[54]It has never been disputed that the Claimant has a disability for the purposes of the Equality Act 2010. It is recognised that his condition is a serious one. That is not in dispute.

[55]It is important to explain that the Tribunal must apply the law as it is laid down in the statutes which are written by Parliament. In respect of a claim for reasonable adjustments, it is not the case that, just because a Claimant is disabled, that any failure to provide auxiliary aids will be discrimination under the Equality Act 2010. The Tribunal must go through and assess all the necessary stages laid out in the Equality Act 2010 in order to make such a finding. The Tribunal must be satisfied that the lack of an auxiliary aid put the Claimant to a substantial disadvantage. If so, did the Respondent know of this substantial disadvantage? If so, did they fail to provide the auxiliary aid? If so, was this failure reasonable?

[56]The Tribunal also makes the observation that employers can and do provide auxiliary aids to employees who are both disabled and non-disabled. There could be many reasons for an employer to do this, and the provision of such an aid does not mean that an employer concedes that the employee would be at a substantial disadvantage without it. Ergonomic Chair

[57]There is some question mark regarding whether there was a substantial disadvantage with regards to the lack of the ergonomic chair. In the Claimant’s application for ill-health retirement [200] he states “Although I have been allocated ergonomic chairs months after the procedure they do not help with my hips, glute/buttock and back pain. Even though I try to take regular breaks as advised, my conditions have not improved”.

[58]This is in contrast to his evidence to the Tribunal, which was that the chair had been “an immense help”. His evidence was that he reconciled these two positions by saying that as of October 2024 the chair was no longer of help to him. The Tribunal is unconvinced by this. The Claimant’s statement in the ill-health retirement form is unequivocal. His subsequent explanation is not consistent with this. It would be no inconvenience to the Claimant to write words to the effect of “the chair has been of benefit to me but is no longer of benefit to me”. This is what he claims is the truth for this Employment Tribunal. It is absolutely at odds with what he says in his ill-health retirement form. The Tribunal finds that he has been, at best, inconsistent in his ill-health retirement form. This calls into question the Claimant’s credibility. Case Number: 3205406/2022 10

[59]The Tribunal, however, is satisfied that it does not need to make findings and whether there was a substantial disadvantage prior to 22 May 2023 in relation to the Claimant not being provided with the ergonomic chair.

[60]If there was such a substantial disadvantage, the Respondent did not know about it and could not reasonably have known about it until the OH Work Station Assessment on 22 May 2023. The chair is then delivered by 4 July 2023.

[61]This is a period of 43 days. In evidence, the Claimant said he thought a period of three months would be reasonable in which to get suitable equipment to him if it was required as a reasonable adjustment under the Equality Act 2010. The actual time in which this equipment was provided is significantly under this.

[62]The Tribunal is satisfied that this is a reasonable period in which to provide the auxiliary aid to the Claimant. It follows, therefore, that there was no failure to make reasonable adjustments, and so the claim in respect of the ergonomic chair fails. Ergonomic Mouse

[63]In order for this claim succeed the Claimant must show that he was placed at a substantial disadvantage due to the lack of the ergonomic mouse. The Claimant’s claim is that he is placed at a substantial disadvantage due to a standard mouse causing him pain in his wrist.

[64]The Claimant completed a DSE checklist on 5 April 2023. It has a section regarding keyboard and mouse. The Claimant says “I need a DSE assessor to review” but makes no mention of wrist pain when using a mouse [151]. There is one mention of wrist pain, but this is in relation to using a smart phone [152].

[65]The OH Work Station Assessment does make reference to the Claimant being asked about his equipment. It states the Claimant uses a QWERTY keyboard and a standard optical mouse. The report contains the words: “Mr Wilson is currently using a standard QWERTY keyboard with a standard optical mouse. He reports no upper limb issues when operating these input devices”.

[66]The Claimant’s evidence to the Tribunal was that he understood upper limb to referred to his upper arm; that is to say his arm between his elbow and his shoulder. The Tribunal does not accept this. “Upper limb” in standard English usage does not mean the upper part of one’s arm. Upper limbs are arms and lower limbs are legs. It is inconceivable that the Claimant, who is an educated and intelligent man, would not understand upper limb to mean arm. Even if he did it, however, (which the Tribunal is not believe) his evidence still does not ring true. It is inconceivable that someone would say they have no pain between their elbow and shoulder when using a mouse, but neglect to mention that they do have pain between their elbow and fingers. The Claimant’s evidence on this point is not credible. The Tribunal is satisfied that the Respondent would have accepted the statement of “no Case Number: 3205406/2022 11 upper limb pain” as being consistent with the Claimant not having pain in using a standard optical mouse.

[67]The Claimant’s evidence on this point is so unbelievable that it again calls his credibility into question.

[68]This unconvincing and not credible evidence of the Claimant leads the Tribunal to question the veracity of his statements. His evidence on this point is simply not believable and so, put simply, the Tribunal must question whether his other evidence can be believed.

[69]The Tribunal found other answers the Claimant gave to be evasive and unconvincing. For example, when the Judge asked for an explanation regarding what the Claimant’s workstation was like both at work and at home, the Claimant gave guarded answers. He was asked if he had two screens at work. His answer was that he had “access” to two screens. It wasn’t clear what he meant by this. Some effort had to be expended on getting him to establish what this actually meant; by the end of which he conceded that he did have two screens on his desk at work.

[70]The Claimant was questioned regarding the meeting at with OH on 22 May 2023. The Claimant’s case is that there was no duplication between what was discussed in the DSE assessment and what was subsequently discussed in his OH Work Station Assessment. That is to say, the mouse and screens were the subject of the DSE assessment, and the subject of the OH Work Station Assessment was only for the chair, and mentioned the screens. The Tribunal rejects this evidence. There is nothing in the OH Work Station Assessment that would suggest that it was not a complete assessment. OH assessors are professionals, and if something had not been considered, the Tribunal is satisfied that report would contain words to the effect of “X has not been taken into account because it is being dealt with by a previous assessment”. There is no such text in the report.

[71]The Claimant’s contention that there was no duplication between the DSE assessment and the OH Work Station Assessment is not consistent with the wording of the OH report and is similarly not believable. The Tribunal does not accept that the two assessors had somehow agreed to ‘divide up’ the issues between them. There is no suggestion in the OH report (which is the second chronologically) that this is what happened. The Tribunal is satisfied that the OH Work Station Assessment was an holistic report of the entirety of the Claimant needs and that the Claimant had been questioned on all aspects of his DSE set up during the OH Work Station Assessment. The Tribunal therefore accepts that the observations and recommendations of the OH Work Station Assessment were true and consistent with the Claimant’s circumstances at the time. The Tribunal accept that there was no wrist pain reported at this stage, and therefore the Tribunal is satisfied that there was no substantial disadvantage in relation to the lack of an ergonomic mouse.

[72]There is, therefore, no substantial disadvantage in relation to the mouse is made out. Even if there was a substantial disadvantage, the Respondent could not reasonably have knowledge of it, as the report clearly states there are no issues. There has been no subsequent documentation that supports Case Number: 3205406/2022 12 wrist pain or that the Claimant would be at a substantial disadvantage without the mouse. The Tribunal notes that the ergonomic mouse was provided in December 2024. As noted above, many employers will provide auxiliary aids to employees, but that does not mean that the employees at a substantial disadvantage without it for the purposes of the Equality Act 2010. Two Screens

[73]The Tribunal finds that it is the same position as above regarding the two screens. The OH Work Station Assessment says, “If practicable, provide Mr Wilson with a second screen at home.” It does not say that the Claimant would be substantially disadvantage without it. In his own evidence, the Claimant’s first answer to what the substantial disadvantage was in relation to his productivity. There are no records that he has ever been disciplined for lack of productivity to the Tribunal does not find that this would put him at a substantial disadvantage. He did later say that the substantial disadvantage was that he was in pain by having to look down at his laptop screen, but this is not supported by the recommendations from OH.

[74]Even if there was a substantial disadvantage, and the Respondent knew about it, the Claimant appears to have taken no steps to actively progress his request for these auxiliary aids. His argument is that it is for the managers to do so.

[75]The Guidance on [240] says: “Occupational Health advice is advice only for the manager to consider. The manager is responsible for making decisions regarding the advice contained in the report.”

[76]This does not mean that the entire onus to investigate is on the management. Employees must bear some responsibility for highlighting any issues they are having and for chasing things up if problems persist. Communication in the workplace should always be two-way.

[77]In the workstation passport from after October 2023 there is no mention of wrist pain in his current health conditions [189], which further supports that there was no substantial disadvantage in relation to the mouse.

[78]At page [190 - 191], the Claimant lists what he does have. His case is that this therefore alerts Mr Lynch to what he does not have. This is a very opaque way of trying to highlight what he still needs. It would be no hardship for the Claimant to write a list of “this is what I have” and a second list of “this is what I still need or an awaiting”. His argument that he alerted his manager to the lack of these auxiliary aids in this manner is not a reasonable one.

[79]Further, at [193] the question is “Do you require any specialist equipment or technology to be provided to support you in your role?”. It goes on “If yes, please provide further details. Information may include:• Provision of assistive software (e.g. screen readers)

• Provision of ergonomic chair

• Provision of noise-cancelling headphones”. Case Number: 3205406/2022 13

[80]The Claimant again lists what he has received. Not what he needs or wants. He doesn’t properly answer the question. It was therefore reasonable for the Respondent to assume that the Claimant was not substantially disadvantaged by the lack of two screens or the lack of a mouse, and it further supports the Tribunal’s finding that he was not substantially disadvantaged by the lack of these auxiliary aids.

[81]The Tribunal therefore repeats its similar finding in relation to the mouse, that no substantial disadvantage in relation to the screens is made out. Even if there was a substantial disadvantage, the Respondent could not reasonably have knowledge of it, as the information from OH does not support this. The Tribunal notes that the screens have also subsequently been provided to the Claimant. As noted above, many employers will provide auxiliary aids to employees, but that does not mean that the employees at a substantial disadvantage without it for the purposes of the Equality Act 2010. Many employers will provide additional screens for reasons such as ease of productivity, but this is not related to disability and therefore does not give rise to a claim under the Equality Act 2010. The Desk

[82]The OH Work Station Assessment notes that “The desk in the Stratford office is a height adjustable desk from Herman Miller (Nevi). Mr Wilson was encouraged to use a height adjustable desk whenever practicable, when in the office, to ensure that the sitting height is optimal for a comfortable posture and to allow some working in standing, even if limited by hip strength and standing tolerance to short periods”. The use of the words “wherever practicable” do not suggest that the Claimant is a substantial disadvantage without a height adjustable desk. It is a general suggestion and, importantly, the “recommendations” section of the report contains no mention of the desk.

[83]The Claimant’s claim in relation to the desk is based on the “like for like” comment by Paula Lockyer in her DSE assessment. His argument is that the OH Work Station Assessment did not duplicate matters and therefore did not assess him in relation to a desk. The Tribunal’s order made findings on the plausibility of this argument and rejects it. It is also clear from the OH Work Station Assessment that the desk was discussed, and there is no suggestion that the absence of such a desk but the Claimant at a substantial disadvantage.

[84]The Claimant does not actively inform Mr Lynch that he doesn’t have the mouse and screen [218] until after the Ill Health Retirement application is submitted. 25 November 2024. These are ordered on 27 November 2024 and received by 4 December 2024 [228]. The Claimant also chases up the adjustable desk, saying it was recommended by Paula Lockyer. The Tribunal, as per its previous findings, is satisfied that this was not actually a recommendation from Ms Lockyer. Her comment was caveated by “if practical” and being subject to an OH assessment, which subsequently did not recommend a height adjustable desk.

[85]Despite the mention of “like for like” in home working conditions to office working conditions being made in April 2023 - which the Claimant places a Case Number: 3205406/2022 14 lot of reliance on - the Claimant has not raised any issues with him not having a height adjustable desk at home with his manager from that date until December 2024. There is 18 months of the Claimant, on his case, being put at a substantial disadvantage due to the Respondent’s failure to provide the height adjustable desk. The Claimant’s evidence, which it was agreed was incorporated into his witness statement, at [98], say “The Respondent is responsible (culpable) for unnecessarily inflicting torture on the Claimant to work without providing adequate support and items/equipment”.

[86]The Tribunal has to consider why the Claimant would not raise any grievance or internal complaints procedure regarding what he conceived to be “torture” [98]. There is no convincing reason why the Claimant would not have done so. One, very cynical, interpretation might be that the Claimant’s plan all along was to bring his employer in front of an Employment Tribunal. This is concerning. The alternative is that the absence of the desk was not actually causing the Claimant a substantial disadvantage, and this is why he did not raise it. The Tribunal is satisfied that it is inconceivable that the Claimant believed that he was at such a substantial disadvantage that it amounts to “torture” and yet chose not to chase or raise any form of internal grievance regarding this, or simply chase it up. It would be no hardship to the Claimant to have sent emails asking about the desk or enquiring how the process of obtaining it works. If it was important to him, the Tribunal is satisfied he would have done so. The Tribunal repeats its findings above that, while managers have responsibility to the employees, this does not absolve the employee of any duty to be proactive.

[87]The Tribunal’s conclusion is therefore that the Claimant was not at a substantial disadvantage due to the absence of a height adjustable desk.

[88]For the above reasons, the Claimant’s claim in respect of failure to make reasonable adjustments fails.

[89]On a final note, the Tribunal reiterates its finding that the Claimant has never raised a grievance nor internal complaint. His explanation is that, in his previous claim to the Employment Tribunal, he first attempted to exhaust the internal grievance policy and his Employment Tribunals claim was subsequently found to be out of time. He says he wished to avoid this situation again. That is understandable, but he does not explain why he could not have raised a grievance either at the same time as bringing his Employment Tribunal claim or during the subsequent 28 months. If he had brought his grievances to the attention of his employer, it is possible that the auxiliary aids would have been provided.

[90]At this point the Tribunal notes that, following the Tribunal’s findings, there was no Equality Act 2010 duty for the Respondent to do so, but the Respondent nonetheless may have done so in order to assist the Claimant on a more general basis.

[91]If the Claimant had got what he needed, in his case, to be able to work, he could have informed the Tribunal that his claim was withdrawn. There would be no need, therefore, for three days of precious Employment Tribunal time to be taken up with this matter. The Claimant, however, chose not to do this. Case Number: 3205406/2022 15 It appears that he was determined to take this matter to an Employment Tribunal regardless of the Respondent’s own internal complaints procedures. The Employment Tribunal should be used as a matter of last resort. It is not an alternative to a grievance process. The Tribunal is satisfied that, if any of the Claimant’s claims had been successful, they would be subject to a reduction for not complying with the ACAS code of conduct. Approved by: