Disability discrimination & reasonable adjustments
In the recent case of Linsley v Commissioners for Her Majesty’s Revenue and Custom UKEAT/0150/18 the Employment Appeal Tribunal decided the employer had not breached its duty to make reasonable adjustments when not offering an employee a dedicated parking space.
This case is a useful example of how tribunals and employers ought to approach issues to do with reasonable adjustments.
The Law: Duty to make reasonable adjustments
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, it must take such steps as it is reasonable to take to avoid the disadvantage.
This is not an absolute obligation on an employer to make any and all possible adjustments. Employers must remember that they will not breach this duty unless it fails to make an adjustment which is “reasonable”.
This is a fact-sensitive question based on the circumstances of each case and what is considered reasonable ought to vary depending on the specific disadvantage suffered by the individual and/or the circumstances of the employer.
The test of reasonableness is objective and requires tribunals to substitute their own opinion for that of the employer, and to decide if the employer’s time and resources should be spent in a particular way.
The employee, Ms Linsley, suffered from a condition that made her need to go to the toilet urgently and which could be aggravated by stress. Her employer, HMRC, had a policy on the use of its car parks where priority was given to staff who required a parking space as a reasonable adjustment.
In 2012, an occupational health report stated that she would benefit from a dedicated parking space at her place of work, near the building so she could go the toilet urgently if necessary. Between 2012 and 2015 she was provided with a dedicated parking space. When she moved work place in 2015, she was again provided with a dedicated parking space which was also a disabled parking space.
In 2016 Ms Linsley began working at another site, shortly prior to which she requested a dedicated parking pace at the new workplace. However, instead of being provided with a dedicated parking space, she was given a parking space near the toilets if she failed to get a space near the building (and toilets) on a first come first served basis. This would require her to sign paperwork with the office expressly without the need to explain her condition. Alternatively, she could park in an unauthorised zone, incurring a notional sanction which the employer would ensure was not applied to her. She would also be required to move the vehicle later in the day if/when a space became available.
Ms Linsley was aggrieved by the decision not to guarantee her a dedicated parking space and in early 2017 she went off sick with stress.
She issued a claim for disability discrimination, initially making 57 allegations before withdrawing all except four.
The Employment Tribunal decided that HMRC had not been in breach of its duty to make reasonable adjustments.
It found that the alternative arrangements they had made constituted reasonable adjustments. It did not matter whether the new arrangements were equivalent to a dedicated space, simply that it was a reasonable example of an adjustment for the circumstances of the employee and work place.
It was noted however that HMRC had failed to abide by its own policy on parking space allocation. Nevertheless, the Tribunal did not consider this material to their decision and held that as the rights contained in it were discretionary, they were not contractual and could not be depended upon as being adopted in all cases.
Ms Linsley appealed on grounds that:
• The tribunal should not have found that the car parking policy could not be depended on because it was discretionary and not contractual;
• The tribunal had failed to consider the stress caused by having to look for a car parking space at work, which in turn would be likely to aggravate her symptoms.
• The tribunal had applied the wrong test by considering whether the adjustment sought was the only possible or best solution.
The Employment Appeal Tribunal allowed the appeal on all grounds and ordered the same tribunal to consider the reasonable adjustment issue again.
The stress of having to search for a parking space
In any reasonable adjustment claim, the focus must be on the particular disadvantage suffered by the employee when assessing the reasonableness of the steps taken by the employer. If this is not the case, there will be a lack of correlation between the two.
When considering the particular disadvantage suffered by Ms Linsley in this case, the tribunal ought to have considered the stress which resulted from her having to find a parking space and not just the regular need to use a toilet urgently. The stress exacerbated the symptoms and the need to use the toilet. This is quite rightly, relevant to assessing the reasonableness of the steps taken.
Had the tribunal focused on that specific disadvantage it might have concluded that the arrangements which had been made, including looking for a space or moving the car later, would do little to avoid that disadvantage.
The car policy
A major factor which the tribunal should have considered, when assessing the reasonableness of the adjustment, was the existence of the car parking policy.
An adjustment that is recommended in the employer’s own relevant policy is one that is likely, at least as a starting point, to be a reasonable adjustment to make. While there may be good reasons for departing from the policy, in such cases the employer ought to be able to provide a cogent reason for doing so.
In this case, the only explanation put forward appeared to be that the managers acted in ignorance of it. This is not a cogent reason.
Further, the tribunal had incorrectly reduced the policy’s significance by referring to it as discretionary.
Employers must remember that a policy does not need to be contractual in effect to be relevant when determining the reasonableness of an adjustment. An employer is unlikely to be able to show that it discharged the duty to make reasonable adjustments if it failed to follow adjustments listed or suggested in its own policies.
The tribunal applied the wrong test
Although the appeal was successful, the Appeal Tribunal stressed that an employer is not required to select the best or most reasonable selection of adjustments, nor is it required to make the adjustment preferred by the disabled person.
The test of reasonableness is and remains an objective one and “so long as the particular adjustment selected by the employer is reasonable it will have discharged its duty”.
The Tribunal and parties in this case had used terms including ‘best’ or ‘only possible’ adjustment; and this was clearly unhelpful. However, the tribunal’s approach itself was flawed, being infected by its failure to focus on the particular disadvantage in question.
Finally, where there is a long history of medical evidence and correspondence about a medical issue, an employer should review matters comprehensively and not base its adjustments on the most recent evidence only for the real medical situation, and the particular disadvantage suffered, can change and fluctuate over time.