In the recent case of Linsley v. Commissioners for Her Majesty’s Revenue and Custom UKEAT/0150/18 the Employment Appeal Tribunal (EAT) gave guidance on factors to be taken into account in deciding whether an adjustment is reasonable.
Ms Linsley suffered from a disability, ulcerative colitis, which could make her need to go to the toilet urgently and was aggravated by stress. HMRC has a national policy on the use of its car parks where priority is to be given to staff requiring a parking space as a reasonable adjustment. Occupational health reports stated that Ms Linsley would benefit from a dedicated parking space and initially this was provided.
However, when she moved sites, instead of being provided with her own parking space, she was entitled to park near the toilets, if she failed to get a space near the building (and toilets) on a first come first served basis. This would also require her to sign paperwork with the office. Alternatively, she could park in an unauthorised zone, but would have to move her car later on, and would incur a notional sanction, which HMRC would ensure was not applied to her.
Ms Linsley went off sick with stress and brought a claim against HMRC for disability discrimination, which included the claim that HMRC had failed to make reasonable adjustments.
The Employment Tribunal held that HMRC had not been in breach of its duty and that the alternative parking arrangements were reasonable adjustments. The Tribunal noted that HMRC had failed to follow its own car parking policy, but said that it was discretionary, so could not be relied upon.
Ms Linsley appealed to the EAT. The EAT allowed the appeal and remitted the case to the same Tribunal to reconsider the reasonable adjustment issue. The EAT stated that:
- an adjustment that is recommended in the employer’s own policy is likely to be a reasonable adjustment to make. An employer must have a clear and convincing reason for departing from its policy, even if it is discretionary. Here, the only explanation was that the relevant managers did not know about the policy; and
- in assessing reasonableness, the particular disadvantage suffered by the employee should be considered. Here, the Tribunal had failed to consider the stress caused to Ms Linsley in having to search for a parking space.
This case makes it clear that employers must focus on the disadvantage suffered by the employee when considering adjustments. In addition, if the employer has a relevant policy then this should be followed, unless there are persuasive reasons for not doing so.