Disability Discrimination: Reasonable adjustments and dedicated parking spaces.

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Disability Discrimination: Reasonable adjustments and dedicated parking spaces.

Published 12 April 2019

THE FACTS

Ms Linsley, who is employed by HMRC, has ulcerative colitis. The condition can make her need to go to the toilet urgently, can flare up and down, and can be aggravated by stress. HMRC has a national policy on the use of its car parks. This policy is that priority is to be given to staff requiring a space as a reasonable adjustment.

For several years, Ms Linsley was given a dedicated parking space so that she would be near a toilet when she parked. This was as advised by OH reports, which also highlighted that stress can aggravate the condition. However, in 2016, she started working at another site. She was not given a dedicated parking space, but instead was told she could use “essential user bays” if she couldn’t get a space when she arrived on a first come, first served basis. This would require her to sign paperwork, though without the need to explain her condition. Alternatively, she could park in an unauthorised zone, which would incur a notional sanction which HMRC would ensure was not applied to her. She would also be required to move her car later. None of these options guaranteed her a space.

Ms Linsley went off sick with stress. OH reports highlighted that stress was a trigger for her condition and also that HMRC had not put in place recommendations made, which had exacerbated her symptoms.

Ms Linsley brought a claim for disability discrimination, including a claim that HMRC had failed to make reasonable adjustments.

The employment tribunal held that HMRC had not been in breach of its duties to make reasonable adjustments. It found that the alternative arrangements in relation to parking constituted reasonable adjustments. In relation to HMRC’s failure to follow its own policy, the employment tribunal noted that the rights contained in the policy were discretionary and could not be relied on.

Ms Linsley appealed and the EAT allowed her appeal.

The EAT held that the employment tribunal should have considered the parking policy when assessing whether the adjustment was reasonable. An adjustment that is recommended in an employer’s own policy is likely to be regarded as a reasonable adjustment. If the employer does depart from a policy, it should be able to give a cogent reason for doing this. The only explanation here for HMRC’s departure from the policy was that the relevant managers were ignorant of the policy. This was not a good reason for failing to comply with the policy. The fact that the policy is not contractual does not mean that it is irrelevant when considering the reasonableness of the adjustment.

The EAT also found that the employment tribunal did not consider the particular disadvantage suffered by Ms Linsley. In considering what was “reasonable”, the employment tribunal ought to have considered the stress which resulted from her having to search for a space, not just Ms Linsley’s need to park near a toilet. It had not done so. HMRC should have been aware, from OH reports and what Ms Linsley herself had said, that looking for a space was a source of stress for Ms Linsley.

The EAT considered the tribunal’s comment that the reasonable adjustment requested by Ms Linsley was not the only possible or best solution. However, the EAT pointed out that an employer is not required to select the best or most reasonable of adjustments, nor is it required to make the adjustment preferred by the disabled person. So long as the particular adjustment selected by the employer is “reasonable” it will have discharged its duty.

WHAT DOES THIS MEAN FOR EMPLOYERS?

When considering what adjustments should be made, employers should keep in mind the specific disadvantage suffered by the employee. Employers should also make sure that they look at all evidence relating to the reasonable adjustments, not just the most recent OH reports. Employers must bear their own policies in mind, and only depart from them if they can articulate a good reason for doing so.

Mrs M Linsley v Commissioners for Her Majesty’s Revenue and Custom UKEAT/0150/18

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Key Contacts

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

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