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Written by Brabners LLP
In the recent case of Linsley v Commissioners for Her Majesty’s Revenue and Custom, the Employment Appeal Tribunal (“EAT”) found that an employer had failed to make reasonable adjustments by not providing a disabled employee with a dedicated parking space. This was despite the employer providing the employee with alternative parking provisions to try and accommodate her needs.
How did the employer fail in its duty to make reasonable adjustments? What are the learning points employers need to be aware of?
The duty to make reasonable adjustments is imposed by the Equality Act 2010 (“the Act”) and exists to help disabled job applicants, employees and former employees in certain circumstances. This also covers workers who are able to bring claims under the Act.
The duty to make reasonable adjustments arises where a disabled person is placed at a substantial disadvantage by:
The duty to make reasonable adjustments only applies where the employer knows, or ought reasonably to know, that the person in question is disabled and is likely to be placed at a substantial disadvantage because of their disability.
In the case of Linsley, a HMRC employee (Ms Linsley) had ulcerative colitis – an unpredictable condition which causes a sudden and urgent need to go to the toilet. The condition can also be exacerbated by stress. Ms Linsley had worked for HMRC since 2001 and had always driven to work. In April 2012, the occupational health service at HMRC confirmed that Ms Linsley would benefit from a car parking space to avoid the stress of looking for a place to park, which aggravated her symptoms.
HMRC has a national policy on the use of its car parks, giving priority to staff members who require a reasonable adjustment to be made under the Act. HMRC did not dispute that Ms Linsley’s condition was a disability. Ms Linsley had previously been provided with a parking space after the initial occupational health assessment but after she moved to a different site in 2016, her request for a parking space was declined. Instead, HMRC allowed her to park in a car park for essential users or in a lay-by near to the offices in the case of emergency, on the basis that she had to move her car once she was able. Importantly, neither option guaranteed Ms Linsley a parking space.
Ms Linsley went off sick with stress and she subsequently brought a claim for disability discrimination on the basis that HMRC had failed to make reasonable adjustments.
The tribunal concluded that HMRC’s policy was discretionary only and that by making alternative provision for Mrs Linsley, HMRC had sufficiently discharged their duty. On this basis, the tribunal dismissed the claim. Mrs Linsley appealed the decision.
The EAT disagreed with the tribunal and allowed the appeal, remitting the issue back to the same tribunal to reconsider.
The EAT said that any departure from HMRC’s policy should have been justified with clear reasons and that the tribunal had diminished the policy’s significance by regarding it as non-contractual and discretionary. The EAT, unsurprisingly, found that ignorance by managers of the policy was not a sound reason for failure to follow it.
The EAT also found that the tribunal had not considered the particular disadvantage to Ms Linsley, namely the stress caused by having to look for a parking space. Instead, the tribunal had unduly focused on the issue of access to toilet facilities. As the adjustments made by HMRC did not guarantee a parking space, they did little to avoid the disadvantage (stress) suffered by Ms Linsley.
Finally, the EAT clarified the appropriate test when assessing whether or not an employer has fulfilled its duty. It made clear that an employer is not required to facilitate the “best” adjustment or the adjustment requested by the employee where there is more than one potential solution. Rather, the test is an objective one and the question is whether the adjustment is reasonable and overcomes the particular disadvantage to the employee.
This case confirms that employers’ policies are likely to be considered by tribunals when assessing whether an employer has discharged its duty to make reasonable adjustments. As such, it is important for employers to understand and comply with their own policies – unless there are clear and justified reasons for not doing so. This might seem obvious but sometimes policies can be left in the top drawer and forgotten about, so it is important for employers to remember to refer to them when an HR issue arises and to keep them under review. Of course when assessing the question of reasonableness, tribunals will continue to take into account factors such as expense, size of the company and impact on the business, but employers should ensure that this is reflected in their policies.
Employers also need to consider the specific disadvantage experienced by a disabled employee to ensure that any adjustment adequately addresses this. Practically, it is sensible for employers to have open discussions with employees to understand their needs, as well as considering all of the evidence relating to the employee’s disability. Keeping a paper trail and adequate records will assist employers in being aware of employees’ needs and will help to mitigate the risk of employers falling foul of the Act.
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership.