UT decision on standing/sitting

I’ve just received a copy of the decision.  It’s not good news I’m afraid.  It holds, uncontroversially for me, that a person scores points only if he can neither stand nor sit for more than the appropriate time.  However, it also holds, controversially, that a person will not score points if he can remain at a workstation for more than the required time through a combination of standing and sitting, ie the ATOS interpretation.  Attached….

thanks very much tom.

I find the comments on what is a workstation interesting.  It is noted that at some supermarket checkouts the operator can either stand or sit, and is able to swap between the two. 

However e.g. my workstation is a desk.  If I stand up after 20 minutes I would consider that I have ‘moved away’ from my workstation; I cannot use   the workstaion while standing as it is now the wrong height. 

Victor

And the provision says ‘a’ work station not ‘any’ or ‘several different types’ of work station. How many employers provide a range of work stations a particular employer can alternate between to enable them to aviod significant discomfort or exhaustion.

As it is probably not possible to do any effective work at a workstation designed for sitting if one is standing (or visa versa), unless the claimant only has to sit / stand for a few moments before returning to the proper operating position it is difficult to see how they can be said to ‘remain at a work station’ in any meanigful way (and carry out their job to the satisfaction of an employer) as discussed in para 38 of the decision.

The decision would still appear to provide plenty of scope to argue the realities of remaining at a work station in any meaningful way despite the legal interpretation of the meaning of the provision itself given by this decision !

“I don’t care what rules of English the Judge felt can be interpreted… surely they have to be interpreted the same way within the same document?.......!!

No they don’t.  One of the basic rules of statutory interpretation is that words have to be interpreted within the context in which they appear.  I’ve always been pessimistic about the outcome of a case on this issue to the UTT.  The phrase in the descriptor which has always been the elephant in the room is “before needing to move away to avoid severe discomfort or exhaustion”.

The poor statutory drafting of the descriptor has always left room for doubt until it got to the UTT and advisors, including myself, were always correct in arguing for the more generous reading for our clients.  It is to the credit of tribunals that they have been willing to lean to our arguments until it got sorted out by higher authority. 

It is going to be of little use to start splitting hairs over things like “what is a workstation” or “what does moving away mean?”  Words and phrases, unless given a particular interpretation within the legislation in which they appear are to be given their ordinary everyday meaning.  The UTT gives three examples of a workstation.  There are, of course, as many others as there are jobs.  A shop counter or a chef’s kitchen worktop are others.  And, moving away has a different meaning than simply moving from one position to the next and arguing that one can’t do a particular job while standing is going to cut little ice with tribunal judges.

And, even though the DWP has brought the concept of the workplace into the descriptor one still has to primarily address the functional ability of the claimant to stay in one place by a combination of sitting and standing for the requisite period.  The idea being that if he can for an hour then no points are scored for this descriptor and the conclusion that invites itself to be drawn is that the claimant has fewer limits on his ability to work than someone who could not, albeit with the potential to score points elsewhere.

None of us are naïve enough not to know that this was the previous government’s intention all along.  Until the issue gets to another UTT or the court of appeal the government has struck the first blow.  Tribunals will be bound by this aspect of the decision and now have clear guidance on the matter.  I am by no means saying that we should abandon the fight altogether but for now it is probably time to pause for thought.

Completely agree with Nevip.

I had always been of the view, which I expressed in other threads on this issue, that the test involved sitting and standing ability.  Otherwise if you could only sit for one minute but happily stand for more than hour you could score 9 points.  That would be absurd.  The WCA cannot be viewed in isolation from the real world of work.

I think you’ll always be able to find a workstation where standing up is effectively moving away from it, however, Judge Wikeley was merely providing examples of workstations.  There will equally be workstations which allow you to work irrespective of whether you stand or sit, eg a teacher’s workstation is arguably the entire classroom, or a car park attendant sitting or standing within his ticket booth.  I suspect the law requires a broad view to be taken.

And whilst I am disappointed that Judge Wikeley has found that a combination of standing and sitting is part of the test, I think his purposeful approach is by no means irrational.

Now that the law is clarified, I think we should be exploring more carefully with clients whether there are any credible reasons why a person isn’t able to stand and still for the requisite time.

edit to last sentence: stand and sit even:)

i think para 38 of the decision is important for people who have to alternate between sitting and standing -

‘The “majority of the time” and reasonable regularity

Descriptors 2(b) and 2(c) each expressly requires decision makers and tribunals to make an assessment as to whether a person cannot undertake the relevant activity “for the majority of the time”. At the same time, it is well established that an individual must be able to do so “with reasonable regularity”. The individual who can either sit or stand at a work station for a prolonged period may not be problematic. However, there may be individuals who, because of their health condition, have to alternate between sitting and standing. One may envisage that there may be situations in which a person has to alternate so much between the two positions that it may be difficult to see how they can indeed “remain at a work station” in any meaningful way, given the level of disruption involved.’