The EAT has considered whether a tribunal had adopted the correct approach in determining whether a failure to offer a disabled employee a dedicated parking space amounted to a failure to make reasonable adjustments.
Linsley v Commissioners for Her Majesty’s Revenue and Customs UKEAT/0150/18
The claimant suffered from ulcerative colitis, a fluctuating condition that can be aggravated by stress and causes an urgent need to use the toilet. HMRC has a national policy regarding use of its car parks, with priority given to those staff who require a parking space as a reasonable adjustment. The claimant was provided with a dedicated parking space from 2012 to 2015 following an occupational health report. When she moved site in 2015, she was once again provided with a space. In 2016, she requested a dedicated parking space in advance of a move to a new role in a different location. She was instead allowed access to a certain parking space but only if she failed to secure her own space near the building on a first come, first served basis. Alternatively, she could park in an unauthorized zone for which the penalty would be waived, but she would have to move her car later in the day.
The claimant was unhappy with these options and went off sick with stress, which had exacerbated her symptoms. She later brought a claim for disability discrimination, including a claim for failure to make reasonable adjustments. The employment tribunal held that HMRC was not in breach of its duty; the alternative arrangements at the new site constituted reasonable adjustments, even though HMRC had failed to follow its own policy on parking space allocation (which the tribunal had noted were discretionary). The claimant appealed.
The EAT allowed the appeal and remitted the case to be reconsidered. An adjustment recommended in the employer's own policy will generally be regarded as a reasonable adjustment to make, unless the employer can provide cogent reasons for departing from the policy. The relevant managers’ apparent ignorance of the policy was not a good reason for failing to apply it. It is not necessary for a policy to have contractual effect in order for it to be relevant in determining the reasonableness of an adjustment. The tribunal should have taken into account the additional stress the claimant experienced in having to search for a parking space, and the effect of this stress on her condition.
This case demonstrates the approach employers should take to determining what reasonable adjustments should be made for a disabled employee. The focus should be on the disadvantage suffered by the employee in order to determine reasonableness. In particular, it highlights the importance of an employer’s own policies and how these should be interpreted in terms of making reasonable adjustments. Such policies should not only be drafted very carefully, but also properly communicated to managers and staff.
This article is from the May 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals.