UK: Employment Law Bulletin - April 2019

Last Updated: 3 June 2019
Article by Alacoque Marvin

Would it have been a reasonable adjustment for an employer to follow its own policy?

A disabled employee should have been offered a dedicated parking space as a reasonable adjustment in line with the employer's own policy

Employers have a duty to make "reasonable" adjustments which help to avoid the disadvantage caused to a disabled employee by a policy or working practice. If a disabled employee requests a particular adjustment, employers may at times put forward an alternative adjustment to avoid the disadvantage.

A recent case clarifies the approach an employment tribunal will take when considering whether a particular adjustment is reasonable: a key question is whether the adjustment in question properly addresses the particular disadvantage to the employee

Case details: Linsley v Commissioners for Her Majesty's Revenue and Customs

Ms Linsley suffers from ulcerative colitis which can make someone urgently need to use the toilet and is aggravated by stress. The condition's impact on Ms Linsley amounts to a disability within the meaning of the Equality Act 2010.

HMRC have a national car park policy stating that priority for parking is to be given to staff requiring a parking space as a reasonable adjustment whether or not they are blue badge holders. In 2012 an occupational health (OH) report stated that Ms Linsley would benefit from a dedicated car parking space at work. This was provided.

OH continued to produce reports that recommended making reasonable adjustments for Ms Linsley and highlighting that stress was an aggravating factor for her condition, though the need for a dedicated parking space was not always explicitly stated.

In 2016 Ms Linsley started a role at a new site where management operated under the false impression that dedicated spaces were only provided to blue badge holders. Ms Linsley was not a blue badge holder at the time so she was told that if she could not park near her building, she had special dispensation to park in a spot near to some toilets, provided that the car was moved later. The stress of trying to find somewhere to park further aggravated her condition

Having tried and failed to get her employers to provide her with dedicated parking, Ms Linsley issued a tribunal claim complaining of discrimination on the grounds of disability and that HMRC had failed to make reasonable adjustments.

Employment Tribunal

When considering the reasonableness of the adjustments made, the tribunal recognised that HMRC had not applied their own policy on car parking but held that the policy could not be relied upon by the claimant because it was discretionary and non-contractual. The tribunal also – 4 – held that a dedicated parking space was not the only possible reasonable adjustment in this case, or that it was necessarily the best solution to enable access to toilets. In this instance the tribunal found that HMRC did make a reasonable adjustment regarding Ms Linsley's parking and that this was sufficient for HMRC to discharge its obligations to Ms Linsley under the Equality Act 2010.

Employment Appeal Tribunal

On appeal, the EAT found the tribunal had made three errors in law.

It held that the tribunal had incorrectly diminished the car parking policy's significance and that a tribunal should expect a reasonable employer to provide a cogent reason to explain why a reasonable adjustments provision in such a policy was not followed. In this case, the EAT found the policy had not been applied due to managerial ignorance, which was an insufficient reason.

The EAT held that stress was the particular disadvantage Ms Linsley had relied upon in her case and the importance of stress as a trigger for her condition had been made clear to HMRC by Ms Linsley herself and in a number of OH reports to HMRC going back to 2012. The EAT held that the tribunal ought to have considered the stress put on Ms Linsley by having to find a parking space, not just her need to have access to toilet facilities.

The EAT confirmed that an employer is not required to select the best or most reasonable adjustment, nor do they have to select the option an employee prefers. However, the test of reasonableness is objective and because the tribunal had not put sufficient emphasis on Ms Linsley's stress as the particular disadvantage she experienced, it had not been able to properly apply the test.

The EAT upheld Ms Linsley's appeal and remitted the case back to the tribunal to reconsider the reasonable adjustment issue.

Wrigleys comment

This case highlights the need for employers to consider the effect a particular disability has on that individual employee and to ensure that that particular disadvantage to the employee is adequately considered when deciding on adjustments. Here, HMRC became fixated on the issue of access to toilet facilities without properly considering whether the adjustment addressed Ms Linsley's stress, which was an aggravating factor to Ms Linsley's condition.

The judgment highlights the need for employers to consider earlier OH reports and medical evidence as well as the most recent reports when considering reasonable adjustments.

It also shows that unless an employer has a clear reason for not applying a relevant policy in relation to reasonable adjustment, failure to follow that policy is likely to be deemed unreasonable

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