Employer’s policies highly relevant when assessing reasonable adjustments
An employment tribunal was wrong to rule that an employer had complied with its duty to make reasonable adjustments when it had not provided a dedicated parking space as required by its own parking policy.
In Linsley v Commissioners for Her Majesty’s Revenue and Customs, Ms Linsley has ulcerative colitis and is disabled. Her condition, which can be exacerbated by stress, means that she may need to go to the toilet urgently. HMRC’s national parking policy provides that priority is given to staff requiring a parking space as a reasonable adjustment.
Occupational Health reports indicated that Ms Linsley would benefit from a dedicated parking space so as to avoid the stress of looking for a place to park and so that she could get to the toilet urgently if needed. She was provided with a dedicated parking space. However, when she moved sites in November 2016 she was not provided with one. Instead, HMRC made alternative arrangements for her which allowed her to park in an “essential user bay” near the building entrance. In an emergency, she could park in a layby near the office. This would be a parking violation (but HMRC would ensure she did not get a penalty) and she would then have to move the car later.
Ms Linsley went off work sick. Occupational Health reports highlighted that stress was a trigger for her condition and that HMRC’s failure to implement its recommendations was exacerbating her symptoms.
Ms Linsley brought a disability discrimination claim alleging that HMRC had breached its duty to make reasonable adjustments. The employment tribunal rejected her claim, ruling that the alternative parking arrangements HMRC had put in place were sufficient.
Ms Linsley appealed to the Employment Appeal Tribunal (EAT).
The EAT upheld the appeal.
When considering whether the provision of a dedicated parking space was a reasonable adjustment, HMRC’s parking policy was highly relevant. An adjustment recommended in an employer’s own policies is likely to be a reasonable one for it to make and it makes no difference whether it is a contractual or discretionary policy. Whilst an employer may legitimately decide not to make an adjustment if it has a cogent reason, the only explanation given by HMRC for failing to comply with its parking policy was that the managers were unaware of it what it said. That was not a good reason for failing to apply the policy.
The tribunal had also failed to appreciate that the disadvantage Ms Linsley suffered was the stress of having to find a parking space and not just the need to be able to park near the toilet facilities. Had it appreciated this, it may well have decided that adjustments made by HMRC were not sufficient.
Employers should ensure that they follow their own polices on reasonable adjustments, unless they have a cogent reason for not doing so. Otherwise it will be very difficult to show that they have complied with their duty to make reasonable adjustments. In addition, when considering what adjustments it might be reasonable to make, it is important to identify the disadvantage suffered by the employee. In this case, HMRC’s adjustments addressed the disadvantage of needing to get to the toilet urgently but not the stress of looking for a parking space which exacerbated her condition.
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