In the recent case of Linsley v Commissioners for Her Majesty’s Revenue and Custom the EAT held that the Tribunal had taken an incorrect approach to the question of whether an employee with ulcerative colitis should be provided with a dedicated parking space as a reasonable adjustment.
The Claimant’s symptoms cause her to need to go to the toilet urgently and are affected by stress. The Claimant worked from HMRC and drove to and from work. An Occupational Health report identified that she would benefit from being provided with a dedicated parking space. She was provided with a dedicated parking space from 2012 – 2016. In 2016, the Claimant moved sites and the employer did not grant her a dedicated parking space. Instead, they allowed her to park in a space near the toilets if she failed to her a space near the building in which she worked. Alternatively, she could park in an unauthorized zone (but would have to move the car early). This new arrangement caused the Claimant stress and this resulted in her being signed off sick. She subsequently brought a claim for disability discrimination against her employer for, among other things, failing to make reasonable adjustments.
The Tribunal held that HMRC had not been in breach of its duty. It found that the alternative arrangements made by HMRC constituted reasonable adjustments. It noted that HMRC had failed to abide by its own policy on parking space allocation but that the rights contained in it were discretionary and could not be depended upon.
The Claimant appealed on the following grounds:
· That the Tribunal was wrong to decide that the policy could not be relied upon because it was discretionary.
· That the Tribunal failed to address the stress caused by the new arrangement which exacerbated her symptoms.
· That the Tribunal applied the wrong test by considering whether the adjustment sought was the only possible or best solution.
The EAT allowed the appeal on all grounds and remitted the case for the same tribunal to consider the reasonable adjustment issue.
An employer has a duty to take such steps as are reasonable to avoid a disabled employee being put at a substantial disadvantage, when compared to a non-disabled employee, as a result of a provision, criterion or practice. An employer will be in breach of this duty where it fails to make an adjustment which is “reasonable”. The test of reasonableness is an objective one to be determined by the Tribunal. In determining whether an adjustment is reasonable, a Tribunal should look at the facts and decide whether, in their view, the employer’s time and resources should be spent in a particular way. This is a fact sensitive issue.
In this case, the policy is a relevant issue. An adjustment that is recommended in the employer’s own policy is one that is likely, at least as a starting point, to be a reasonable adjustment to make. If an employer wishes to depart from this policy then they must have good reasons for doing so.
This is an important consideration for employers who have discretionary policies such as this. If you would like any advice or assistance in relation to this please contact Kitsons’ Employment Team.