Mr J Allan v Department for Work and Pensions: 4107785/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4107785/2024Venue InvernessHearing 2 & 3 December 2025
Between
Mr Jason AllanClaimantDepartment for Work and PensionsRespondent
Before
Employment Judge J M HendryDate 16 December 2025
JUDGMENT
(One) The claim for a failure to make reasonable adjustments by providing the claimant with an office chair suitable for his disability when working in Buckie from January 2024 until May 2024 being out of time and the Tribunal not being convinced that it was just and equitable to extend the time limit, the claim for the provision of this auxiliary aid is dismissed. (Two) The claims for disability discrimination(1) in relation to the alleged failure to provide the claimant with an extendable Monitor arm and(2) in relation to adjustment of the claimant’s diary and the implementation and provision of microbreaks from August 2024 onwards not being well founded are dismissed.
REASONS
[1]The claimant in his ET1 seeks findings that he was discriminated against on the grounds of his disability in respect of failures to make reasonable adjustments. The claims were denied.[2]The case proceeded to a case management hearing on 27 February 2025 before Judge McCluskey. She ordered that a Preliminary Hearing should take place on disability status. She also prepared a draft List of Issues for parties to consider.[3]Disability status was determined by Judge Sangster following a hearing on 8 May 2025. Her Judgment was that the claimant was a disabled person for the purposes of s.6(1) of the Equality Act 2010 as a result of left-side abdominal pain from January 2019 onwards and as a result of back left-side pain from February 2022 onwards.[4]A final or merits hearing was arranged. Prior to the hearing parties lodged a Joint Bundle. This included an agreed List of Issues (P.54/55).[5]On reviewing the papers prior to the hearing I was a little surprised that the claimant had not added Better and Further Particulars (specification) to the narrative of the claims that he had set out at Box 8.2 in his ET1. However, there had clearly been discussions between the parties when concluding the list of issues (JB.54-55). It appeared that the list of issues went beyond the claim as pled but no objection was made to the claimant leading evidence in relation to the matters set out there.
Evidence
[6]The Tribunal had regard to the Joint Bundle of documents. It heard evidence from two of the claimant’s managers, Kieran Wilson and a Martyn Beaton. The Tribunal then heard evidence from the claimant. Parties had agreed that the respondent would lead evidence first.
Issues
[7]Although there was a detailed list of issues it became clear in the course of the hearing there was little dispute over many of the issues and that broadly there were three areas where the claimant believed he had been subject to disability discrimination in respect to a failure to make reasonable adjustments. The first was the failure to provide him with a suitable desk with a riser and “orthopaedic chair” when working in Buckie (although the respondent pointed out that only the failure to provide the chair was mentioned in the List of Issues). The second relates to the provision of a monitor arm for his computer screen. The question of the appropriate chair and desk ‘set up’ for the claimant had been reviewed in 2019 and he was provided with a new desk and chair. At that time it appears that he could have been given a moveable monitor arm which would have allowed his computer monitor to be easily moved and this would have had the effect of lessening him having to turn to see the screen when inputting data when he was not using his laptop. Finally, issues in relation to the claimant being able to take microbreaks between appointments allowing him to get up from his desk, have a stretch and take a break from sedentary work from around July to November 2024. Facts I made the following findings in fact:
Facts
[8]The claimant was employed by the respondent from 2008 onwards for the DWP. He worked latterly as a Work Coach. He was well thought of and hardworking. This role involved seeing customers or members of the public as they entered the Forres office and dealing with their enquiries. He would have a busy diary of appointments scheduled for him to undertake. He had to meet customers and input information into the respondent’s computer system. The work was busy and there was little time for breaks. It was sedentary work.[9]The claimant has a long history of various health difficulties particularly unexplained severe left upper quadrant pain in his chest.[10]The Department of Work and Pensions is a government department. It is responsible for welfare benefits, pensions and child maintenance policy. It is the UK’s biggest public service department.[11]In November 2018 the claimant was examined by a Mr A Laurie, Consultant Haematologist at Forresterhill Hospital in Aberdeen. He made a report for the claimant’s G.P. and noted as follows:- “As you will be aware he developed pain in his upper quadrant in March/April this year which originally started as a throbbing pain. This is worse with twisting and bending and is uncomfortable with him sitting forward at work and is progressed over this time frame and is now causing him considerable discomfort.”[12]The claimant was seen by the respondent’s Occupational Health provider who prepared a report for the respondent dated 2 May 2019. It referenced involvement of Mr Laurie. They recorded: “Jason reports experiencing intermittent swelling on the left-side of his abdomen which is proceeded by an episode of sweating. He states that he is unable to sit for more than two minutes at a time and standing and walking help to relieve his pain.”[13]Under the heading “Management Advice” the report noted: “It has been established that Jason would benefit from an Ergonomic Furniture Workstation Assessment.”[14]The claimant was referred for such an assessment. Following an assessment he was provided with a modified “Orthopaedic’’ chair and a desk with a “Riser” allowing of the level of the desk to be adjusted (hereinafter an adapted desk and adapted chair). The claimant reported to his employers that the adapted chair and adapted desk had been assistance to him in managing his condition.[15]The claimant’s condition became long-term and every 18 months or so he would receive pain killing injections. He could not be treated regularly because of the potential side effects of treatment damaging the nerves in his stomach.[16]In November 2021 the claimant was referred to Occupational Health (JB.61- 62). At that point the claimant was continuing post-Covid to returning from working at home to a phased return to the office.[17]The author wrote:- “We would also advise the company that Jason can work in the local Job Centre because the journey takes five minutes walking. However, due to his pain predominantly being in the morning for the company to be flexible with regards to the time he needs to arrive at work also for the company to facilitate a different type of vehicle which is a higher stance therefore allowing him to be seated in the correct posture thus not being detrimental to his pain….. I would also recommend him to have one-to-one management welfare meetings weekly if feasible with the business. Due to Jason’s concern regarding his workstation in the office, it has been established that Jason would benefit from an Ergonomic Furniture Assessment or a PAMOH Workstation Assessment. Please refer to the DWPWAT intranet pages for clarification regarding the referral process.”[18]A further Occupational Health report dated 19 May 2022 was prepared by the respondent (JB.67/68) in relation to his stomach/desk condition it recorded: “This condition causes Jason to struggle in the mornings and, he uses a rise and fall desk in the office to allow him to alternate his position whilst working. Jason states that he does not have this facility in his desk at home for the occasions that he may need to work from home…..”[19]An Occupational Health report was prepared in January 2023 (JB.71/73). This related to further health issues that the claimant was experiencing. It recommended that the claimant should be given a workplace adjustment passport.[20]The respondents gave the claimant a workplace adjustment passport which was reviewed periodically (JB.123-125). The claimant also had a “Carers Passport” (JB.126-129). It was implemented on 8 February 2024.[21]The claimant asked to be moved to the role of Work Coach (WC) in Buckie. He hoped that this would mean spending less time sitting at a desk. His role was to meet customers referred to him by the EA’s for additional support for example over addictions, meet employers to discuss matters such as adaptations for disabled employees and colleagues to discuss cases.[22]He was moved to that role in early 2024. This involved less sedentary work. He mostly controlled his own diary. He used a laptop. However, it involved driving to Buckie which he found tiring. He left the role in May. The manager there has now retired.[23]The claimant returned to working in Forres as an EA. The newly appointed line manager in Forres was a Mr Kieran Wilson. He met Mr Wilson and agreed to take short ten minute breaks to allow him to stand and stretch because of his condition. It was agreed that the diary would be altered to reflect this. The claimant did not seek a formal DSE at this point indicating that the breaks would be enough.[24]The claimant had a formal Health and Attendance Improvement on 16 August 2024 to discuss attendance from July 2023 until July 2024. The claimant had gone over the trigger point for absences. At the meeting it was noted: “Discussed doing another DSE as currently the desk riser alone is not adequate. Before when Jason was EA he could have monitor in middle of desk but now in order to see customer, he needs to have monitor at side and this is causing him to twist at lot. This is setting off his nerve pain. Also he feels awkward when standing and the WC at desk next to him has customer. He feels maybe that if we could have a higher partition it would help him and customers have that privacy. Discussed microbreaks in between appointments so that he could stretch and move about. In conclusion Jason may need a curved desk riser to help with his nerve pain. Is aware that could take a while to arrive, if the DSE shows required. Also need to look at what we can do for privacy when desk riser is in use.” (JB.133)[25]Mr K Wilson began the formal DSE process as a consequence of the advice (JB.135-142) and what he had learned from the claimant. The claimant complained that he did not have a comfortable keying position. He was untimely provided with a new desk (with monitor arm, a new chair, and ergonomic keyboard and mouse. It was accepted that the use of a monitor arm would allow the claimant to move the monitor when inputting date and if struggling to read from his laptop. This process was finalised by a manager Ms Leah Martel (JB.138) and new equipment was ordered. The claimant was given special leave until the equipment was available (JB.146). The claimant was absent on special leave from on or about 19 September 2024 when the new equipment arrived.[26]An Occupational Health Report was prepared on 21 October 2024 (JB76):- “As you are aware, Jason has been referred regarding a 3 month history of lower back pain symptoms which he reports began outside of work. He indicates that his symptoms are problematic when sitting for prolonged periods, twisting or completing repetitive movement. Jason reports that he has been on sickness absence since 23/09/2024. Jason reports currently being under the care of his GP and is managing his symptoms with pain relief. Jason reports that he is awaiting an MRI scan. Jason is confident in his ability to return to work once his recommended ergonomic equipment has been provided.”[27]The report stated: “Under clinical opinion following consultation and clinical discussion with the inclusion of appropriately validated outcome measurement tools, it was established that Jason demonstrated a significant physical restriction and subsequent pain which impacts his ability to sit for prolonged periods as required within his job role. He reports that due to the positioning of the monitors on his current sit-stand desk he requires to twist frequently throughout the day. This is aggravating his discomfort and he reports that since being off work his symptoms have improved. It is feasible that repetitive twisting to aggravate his discomfort but I am confident Jason’s ability to manage his symptoms once we provide him with an optimal ergonomic setup. Once Jason has had an MRI scan the timeframe for expected recovery and a plan for long-term management of his symptoms will be more clear.”[28]The report continued under “Management and Advice”: “Jason is fit to return to work once he has been provided with his recommended sit-stand desk. Due to his symptoms, he exhibited restricted physical capability in relation to his current contracted role. If operationally feasible, it would be prudent to permit to attempt the modifications to Jason’s working role allowing him to return to work with a reduced shift length, and reduced appointments in his arranged diary. This will afford him more time in between appointments to take pause and stretch breaks as recommended. It is then advised that he gradually returns to a normal work schedule and demand over 2-4 weeks. Continued use of pause and stretch breaks along with increased discussions with management will delay disability to manage his symptoms. If the above management recommended adjustments to the contracted duties cannot be facilitated, please be advised that management of his symptoms of work will be more challenging and it may delay recovery. Due to the nature of Jason’s condition it is likely that his symptoms may exacerbate in the future, although it is impossible to predict the regularity of exacerbations.”[29]An occupational health report was prepared on 4 April 2025 (JB.118/119): “Management may wish to consider supporting ad hoc periods of temporary reduced workloads/expectations when Jason is increasingly symptomatic as this would allow him to pace his workload and support better management of his increased symptoms during such times. It would be prudent to allow the opportunity to alter his posture and position frequently, wherever operationally feasible, throughout his working day. Just really mobilising for a few minutes an hour could help to minimise stiffness and additional discomfort at any period of prolonged sitting could trigger or exacerbate ongoing and regular dialogue with him in relation to his overall health and wellbeing is supportive and adjustments accordingly based on symptomology. We recommend further review with occupational health is unlikely to be of benefit as his conditions/symptoms have remained unchanged. A further review is only recommended should there be a clinical change to his symptoms.”[30]When the claimant received the DSE consultation report on 19 September he was upset to see that the desk riser he had been given was not suited to his role as it did not have a modesty panel (as expected when facing the public) and he also noted that a monitor adjustment arm had now been fitted to his desk but wondered why it had not been fitted in 2019.[31]On the 12 November a detailed assessment was made of his workstation (JB.170-183).[32]On 21 November the claimant had a meeting with Emma Hendry, the senior customer leader and Helen Pirie, a senior manager. He indicated that he was considering taking legal action. He was reassured by Miss Hendry that the whole district had reviewed the staffing desks to ensure they were suitable as a result of him raising the issue about having the wrong desk riser installed in 2019.[33]On 26 November she indicated that in the Forres office the desk had been replaced (JB.154).[34]The claimant took a screen shot of his appointments on 25 November 2024. The morning micro break had been overwritten although he had one in the afternoon (JB.156). The claimant complained in September 2024 the diary was not saving microbreaks (JB.159). They were only contained in the diary from 16 December.[35]The claimant had an HAIM meeting on 31 March 2025. Notes were taken (JB.163-164). It was noted: “ Jason brought up the impact of diary capacity and work coach resource in his local office; Jason feels he will always run up on appointments due to his coaching style and therefore won’t get the full entitled for breaks; Martin asked if there was anything that could be done to ensure that full breaks were taken but Jason believes that it is important for him to put the customer at the centre of his interactions; He doesn’t feel this impacts his health.” Witnesses[36]I found the claimant to be an honest and genuine witness who gave his evidence credibly and reliably. He has battled to remain in employment despite considerable health issues. He made appropriate concessions when challenged over certain matters in cross- examination.[37]I found the two managers to be both credible and reliable witnesses who were wholly professional in their approach and sympathetic to the claimant’s situation. Submissions[38]The claimant was not legally represented. Ms Read helpfully agreed to give her submissions first and then to allow the claimant to respond which he did.[39]She first of all asked the Tribunal to hold that her witnesses were credible and reliable. She also indicated that some of the issues the claimant had raised in the hearing were not contained either in his ET1 or in the list of issues. In particular in relation to difficulties in Buckie there was no reference to a desk but simply the chair the claimant raised as being inadequate. In any event her position was that this matter was clearly time-barred.[40]Ms Read then took the Tribunal briefly through the important history of the matter. The respondents did not know that the mobile adjustable arm for the monitor had become an issue until it was raised by the claimant in August 2024. Once it was raised it was dealt with quickly and appropriately. The claimant accepted in the course of his evidence that his health may have worsened by the desk/chair configuration he had been given in 2019 was no longer appropriate when he returned to the WC role in June 2024. She made reference to the cases of Royal Bank of Scotland v. Ashton, Rowan v. Environment Agency and Secretary of State v. R. It was important for the Tribunal to identify the PCP at issue and whether there was substantial disadvantage. The claimant accepted that the adjustments made in 2019 had assisted him. In relation to microbreaks the respondents implemented these as quickly as the diary would allow. The claimant in extent is his own worst enemy in that he would not cut the meeting short to allow microbreaks. The claimant had also raised an issue of having too many 10 minute meetings which because he has to input data was a strain on his side/neck but this is not in the ET1 or in the list of issues. No one can say what is meant to be provided or should have been provided in 2019. There are no records. The respondents have responded when the claimant has raised an issue and if the issue of the monitor had been raised earlier then the matter would have been addressed. The important factor in this case to remember is that the claimant was in fact working as an EA and was only returning to the work coach job which is more sedentary in mid to late 2024. Discussion and Decision[41]The duty to make reasonable adjustments is set out in section 20 of the Equality Act 2010 (“EQA”): “20. Duty to make adjustments … (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.”[42]The section has three components namely the application of a PCP (which must place the claimant at a substantial disadvantage in comparison with persons who are not disabled and if so, the respondent must take such steps as it is reasonable to have to take to avoid the disadvantage. Buckie Claim[43]I will deal with the time bar issue in relation to the failure to provide an adapted chair when the claimant was working in Buckie. The time limits for discrimination complaints are set out in section 123 of the Equality Act 2010. Proceedings may not be brought after the end of(a) the period of three months starting with the date of the act to which the complaint relates or(b) such other period as the Employment Tribunal thinks just and equitable.[44]In Robertson v Bexley Community Centre t/a Leisure Link 2003 IRLR 434 the Court of Appeal stated that when Employment Tribunals consider exercising the discretion under section 123 (1)(b) of the Equality Act 2010 there is no presumption that they should do so unless they can justify failure to exercise the discretion. The Tribunal has, however, wide discretion. A Tribunal cannot hear a claim unless the claimant convinces it that it is just and equitable to extend time. This does not mean that exceptional circumstances are required before the time limit can be extended to such grounds.[45]This related to the period when the claimant went to work in Buckie in the new role as a Work Coach. There was a clear failure to provide him with an appropriate desk and chair for the months he worked there. He ultimately gave up the role as driving to Buckie from his home was exacerbating his condition and he returned to work in the small Forres Office where his adapted chair and desk was situated.[46]In relation to this matter it seems that the claimant was not overly concerned at the time. The role was less sedentary. He seemed prepared to wait until a chair was sourced by one of the managers using her contacts rather than through more formal routes. Nevertheless, the situation was not ideal. Either the manager of the Forres Office where the equipment was located should have sent it to Buckie or the Manager in Buckie should have got new furniture before he started there.[47]It seems that the matter was not treated particularly urgently by either office and this may have been because the claimant’s new role in Buckie was less sedentary. He would be ‘out and about’ speaking to employers and other groups. Nevertheless, he still had some desk work to do. In mitigation it seems that one of the staff in Buckie tried to source an adapted chair for him informally so it was not as if the respondent’s managers were not aware of the issue and slowly dealing with it.[48]If the claimant had lodged a claim in time then it would have been likely to succeed. It was, however, out of time by some months. I considered whether there was a basis to extend the time limits under Section 123 of the Equality Act 2010. I concluded that the claimant had not persuaded me that it was just and equitable do so. He is aware of his rights and the duty on employers to make reasonable adjustments as they had carried out earlier. He was aware of the proper process for obtaining these auxiliary aids. Part of his role was, he accepted, was to discuss how the DWP could assist employers on approving support when employing people with disabilities. The claimant is articulate and able. He has a degree and is internet literate. He could have easily checked what the time limits were for making claims against his employer. I suspect that he did not do so firstly because he was not overly concerned at the time as efforts were being made to source a chair, secondly his role was not particularly sedentary and thirdly he fairly quickly gave up the role and returned to work in Forres. In these circumstances the claims are dismissed as being out of time. I would add that strictly speaking in accords with the List of Issues the claimant was only arguing over the provision of the adapted chair and not an adapted desk. Monitor Arm[49]I now turn to the monitor arm. The PCP is for the claimant to regularly input data and check records shown on the monitor. The employer had been told this in an Occupational Assessment in August 2024: ‘‘He reports that due to the positioning of the monitors on his current sit-stand desk he requires to twist frequently throughout the day’’ This is also reflected in the HAIM meeting he had in August where it is recorded that lack of a monitor arm was ‘now’ causing him difficulties. At that point the employer was alerted to the need to address this matter and did so. The lack of a monitor put the claimant at a substantial disadvantage to those who did not have his disability because of this.[50]The claimant accepted that his heath conditions had probably worsened since 2019 when the first adapted desk and chair were provided. Unfortunately, there was no documentation provided by either side that might have shone a light on what was considered at the time and why no monitor arm was provided. It is not clear that the employer was aware at that time, as they were later, that the positioning of the monitor was an issue. The claimant had not demonstrated that the employers were aware that this was required as a reasonable adjustment prior to 2024 when the up-to-date assessment took place and the adjustments put in place that this then arose. There was no continuing act extending back to 2019.[51]The claimant himself although aware that others in the office had such monitor arms did not query why he had not received one or ask for one. He accepted that it might have been an error that he wasn’t given one in 2019. It might have been that those carrying out the assessment, which we do not have, did not think it was needed as it was regarded as causing a substantial disadvantage then. The catalyst for the claimant raising the matter was the new assessment that was carried out which found various problems with the desks that had been supplied to other staff including the claimant such as they did not have modesty panels. That was not an issue that impacted on the claimant’s disability but when a new desk was supplied with a monitor arm he naturally queried why this had not been supplied earlier. He also became frustrated and a little disillusioned by what he saw as a failure to let him have the microbreaks he was promised and this made him naturally look at the other issues we have discussed.[52]Finally, we come to the microbreaks. The PCP is clearly the requirement for the claimant to see a certain number of appointments, of varying length, throughout the day from 9.30am until 4.30pm. That PCP put the claimant at a substantial disadvantage compared to staff who did not have his disability.[53]The claimant was critical of his then manager Mr Wilson who had recently started as a manager. The claimant felt that he had been too busy to implement the microbreaks properly. That was not what I found. The claimant accepted that he could stand and stretch, which was the purpose of the microbreak, either during or at the end of interviews. He accepted that interviews could be cut short or started a few minutes late. His issue appeared to be that the break was formally recorded. That is quite understandable but in reality he was not prevented from taking a break he worked on. He accepted that he would, often not interview customers terribly efficiently and could have cut interviews short to take a break, we are talking of a few minutes at most. He said he would not take one during an interview as it might be intimidating to customers. This might occasionally be the case but most people if given an explanation would be likely to be understanding. I suspect the predominant reason was a wish not to draw attention to himself in what is a small open plan office.[54]There is no doubt that there were what could be described as teething problems scheduling in microbreaks. The claimant indicated that by November 2024 the system was working well and that he felt fully supported by the employer. We are therefore focussing on a short period. Mr Wilson attempted to schedule in the breaks. The diary system is common throughout the UK and he had no control over its overall functionality and limited control over some aspects of its operation. To structurally alter the diary to add in fixed breaks took about three months to become fixed. Before this, appointments would go into the diary overruling or overwriting the break. Once this period ended the claimant accepted that breaks were much less likely to be overwritten and that the system gradually improved. He was critical about being given short ten minute appointments as he said that this meant more data entry for him and effectively more work. That was not however a complaint that was before the Tribunal.[55]Considering the whole circumstances, I concluded that the employers had taken reasonable steps to implement the system of microbreaks as quickly as they could in the circumstances. It is unfortunate that knowing these difficulties were occurring management didn’t appear to fully explain to the claimant what the difficulties were and what steps they were taking to implement the adjustment. The frustration the claimant felt about appearing to make no progress as noted earlier was the reason why he then raised these proceedings and while he had ultimately been unsuccessful it is hoped that the respondent will take lessons away from this case particularly the necessity of both sides communicating with each other. 16 December 2025