Under the Equality Act an employer must take such steps as are reasonable where a provision, criterion or practice (PCP) puts a disabled person at a substantial disadvantage in comparison with those who are not disabled.
This reasonableness test is objective and is to be decided by the Tribunal – which is unusual in employment law as Tribunals are not normally allowed to substitute their own opinion.
The recent EAT case of Mrs M Linsley v HMRC looked at how the Tribunal should look at whether an employer has made reasonable adjustments. The facts were as follows.
Ms Linsley has ulcerative colitis, a disability under the Equality Act 2010. The condition, aggravated by stress, can make someone need to go to the toilet urgently. Her employer in this case, HMRC, has a car parking policy with priority given to staff requiring a parking space as a reasonable adjustment.
From 2012, following an occupational health report, Ms Linsley had a dedicated parking space. When she moved site in November 2016, the employer gave her what it thought was akin to dedicated car parking space.
Ms Linsley went off sick with stress, upset that the employer had failed to provide her with a dedicated car parking space. Occupational health reports had highlighted that “She would benefit from a car park space to avoid the stress of looking for a place to park, which aggravated her symptoms”
Ms Linsley brought a claim for disability discrimination, claiming that HMRC had failed to make reasonable adjustments. The tribunal held the employer had not been in breach of its duty – the alternative arrangements made by HMRC constituted reasonable adjustments. Although the HMRC had failed to follow its own car parking policy, it was discretionary.
The EAT decision
Ms Linsley appealed and the EAT allowed the appeal, remitting the case to the same tribunal to consider the issue of reasonable adjustments.
The EAT highlighted that where there is a policy, this is a starting point for making reasonable adjustments. The only reason given by the employer for not following the policy in this case was the managers acted in ignorance of it.
The tribunal ought to have also considered the stress, the particular disadvantage relied upon, which resulted from Ms Linsley having to find a parking space. Even though the occupational report highlighting this stress was not the most recent report, it cannot be ignored.
This case shows the focus should be on the particular disadvantage suffered by the employee when assessing the reasonableness of the steps taken by the employer. Further, all medical evidence should be considered and previous reports should not be ignored.
Finally, it highlights the relevance of the employer’s own policies on adjustments. As always, policies can be helpful but employers who do not implement them properly or fail to follow them, do so at their peril.
This article is for general information purposes only and does not constitute legal or professional advice. Please note that the law may have changed since the date this article was published.