Summary
Where a “provision, criterion or practice” applied by an employer puts a disabled employee at a substantial disadvantage, the Equality Act 2010 requires the employer to make reasonable adjustments to overcome that disadvantage. The Employment Appeal Tribunal in Linsley v Commissioners for Her Majesty’s Revenue and Customs has provided some useful guidance to employers on how this obligation operates in practice.
Facts
The Claimant in this case, Ms Linsley, suffers from ulcerative colitis, which it was accepted amounted to a disability under the Equality Act 2010. One of the effects of the condition can be the unpredictable and urgent need for a bowel movement, which is exacerbated by stress.
A 2012 Occupational Health report recommended that she be allocated a dedicated parking space for work to avoid the stress of finding a space. Later OH reports recommended a parking space near to a building but did not make such an obvious connection to the stress caused by trying to find a space. HMRC’s own policy regarding use of its car park gave priority to those needing a parking space as a reasonable adjustment.
As part of a suite of adjustments to her working arrangements, the Claimant was given a dedicated space for a number of years. However, in November 2016, the Claimant moved to a new site and was no longer entitled to a dedicated parking space. Instead, HMRC advised her that if she could not find a space near the building, she could temporarily park in an unauthorised zone (without incurring any sanction) but that she would have to later move her car.
Ms Linsley brought a claim for disability discrimination, including a failure to make reasonable adjustments based on the failure to provide her with a dedicated parking space.
Decision
The employment tribunal rejected her claim, finding that the arrangements made by HMRC constituted a reasonable adjustment and that HMRC’s failure to follow its own non-contractual policies was not material. The Claimant appealed to the EAT, which allowed the appeal.
The EAT held that the tribunal had incorrectly based its decision on the Claimant’s disadvantage being the need to park close to a toilet. However, another disadvantage was that having to find a space caused the Claimant stress, which exacerbated her medical condition. This had been overlooked by HMRC presumably because the reference to stress was not mentioned in the later OH reports.
The tribunal originally held that because HMRC’s car parking policy was non-contractual, it could not be relied upon by the Claimant. The EAT was critical of this approach, confirming that a non-contractual policy is relevant in determining the reasonableness of an adjustment and that an employer must have a cogent reason for departing from it.
Finally, the EAT confirmed that an employer is not required to select the adjustment requested by the employee and nor does it have to select the best or most reasonable adjustment where there are a number of possible adjustments. Provided that the adjustment selected is reasonable, the employer will have complied with its obligation.
Comment
The case has now returned back to the tribunal to decide whether the adjustment made by HMRC was reasonable in the light of the EAT’s judgment. Whilst we therefore do not yet have a conclusion in this case, it is difficult to see how HMRC’s adjustment could be reasonable as it would surely not alleviate the Claimant’s stress suffered when finding a parking space.
Regardless of the outcome, there are a few learning points to take away:
- To ensure the adjustment being made actually overcomes the disadvantages suffered, it is crucial to first get the employee’s particular disadvantages correct.
- Getting updated professional medical input is important, but employers should also refer back to older medical reports to make sure all disadvantages are being considered.
- Policies should be followed (even where they are non-contractual) unless there is a cogent reason not to, which should then be recorded at the time that decision is made.
Kerry Garcia