In the recent case of Linsley v Commissioners for Her Majesty’s Revenue and Customs the Employment Appeal Tribunal (EAT) decided that the employer had failed to make reasonable adjustments for a disabled employee by not providing a dedicated parking space.
Where a provision, criterion or practice applied by an employer puts a disabled person at a substantial disadvantage in comparison with those who are not disabled, an employer is under a duty to make reasonable adjustments to avoid the disadvantage.
Although a fact-sensitive question, an employer will not breach its duty to make adjustments unless it fails to make an adjustment which is “reasonable.”
In this case, Ms Linsley, the Claimant, had ulcerative colitis which was found to constitute a disability according to the law. Ulcerative colitis can result in a person needing to go to the toilet urgently and can flare up if aggravated by stress. Within HMRC’s car parking policy, priority was to be given to staff requiring a parking space as a reasonable adjustment, even if they did not have a blue badge.
An occupational health report in 2012 stated that Ms Linsley would benefit from a dedicated parking space wherever she worked and HMRC complied with this request. In 2015 another report was obtained which reiterated the need for a dedicated parking space at the site where she worked so she could go to the toilet urgently if need be. When Ms Lindsley moved to another site however, she was not given a dedicated space. Instead she was allowed to park in a parking space near the toilets if she did not get a space close to the building. She had the option of parking in an unauthorised zone and would not be sanctioned because of this; however, she would be required to move the car later.
Because of this failure to provide a dedicated parking space Ms Linsley went off sick with stress in 2017. A further occupational health report highlighted that stress was a trigger for her condition and HMRC had not put in place the recommendations made, which exacerbated her condition.
In April 2017 Ms Linsley raised a claim for disability discrimination.
At first instance, the ET found that HMRC had not been in breach of their duty and found that the alternative arrangements, namely the parking near the building or in an unauthorised zone, constituted reasonable adjustments. It also found that HMRC had failed to abide by its own parking policy but that this policy was discretionary.
On appeal the EAT decided that the existence of the car parking policy should have been considered by the tribunal when assessing reasonableness. The fact that an adjustment existed within the employer’s own policy should have been the starting point for the employer to consider what adjustments could be made. It was held there was no good reason for failing to abide by the policy.
The EAT went on to clarify that the Tribunal should have considered the ramifications of the stress that having to find a parking space close to the building affected Ms Lindley’s disability. They found that the employer ought to have been aware of the way stress impacted on Ms Linsley as they had occupational health reports dating back to 2012 which highlighted this issue. Ultimately, the EAT decided that the Tribunal applied the wrong test.
The correct legal test is to ensure that the adjustment made is reasonable. It is not to select the best or most reasonable of adjustments.
This case highlights the importance of assessing the employer’s own policies on adjustments. If an employer fails to follow its own policies then it will most likely fail to meet the duty of making reasonable adjustments. Furthermore, it highlights the importance of assessing medical information correctly and ensuring that a comprehensive review is undertaken, rather than basing an approach only on the most recent evidence.
Disability discrimination can be a nuanced area of the law. If you have any questions, you can contact your dedicated employment solicitor for more information.