The Employment Appeal Tribunal (EAT) has considered the duty to make reasonable adjustments in relation to whether an employee with ulcerative colitis should have been offered a disabled parking space in Linsley v Commissioners for Her Majesty's Revenue and Customs.
The claimant has ulcerative colitis which satisfies the definition of a disability. The condition can make someone need to go to the toilet urgently, and can be aggravated by stress. HMRC has a policy on the use of its car parks which provides that priority is to be given to staff requiring a parking space as a reasonable adjustment. The claimant drove to and from work in her own car and from 2012 (when an occupational health report stated that she would benefit from a dedicated parking space) she was provided with a dedicated parking space.
When she moved site in 2015 she was again provided with a dedicated parking space. When she moved site again in 2016 she was not provided with a dedicated parking space, but was given something which HMRC considered to be equivalent, namely 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, though without the need to explain her condition. Alternatively she could park in an unauthorised zone and incur a notional sanction which the employer would ensure was not applied to her, and would also be required to move her car later.
The claimant was upset by HMRC's failure to guarantee her a dedicated parking space and went off sick with stress in early 2017. She then brought a claim for disability discrimination, alleging, amongst other things, that HMRC had failed to make reasonable adjustments. At first instance the tribunal found that the alternative arrangements made by HMRC constituted reasonable adjustments. The EAT disagreed. It noted that the existence of a car parking policy was one of the factors the tribunal should have considered when assessing reasonableness, especially given that the adjustment the claimant wanted was recommended in the policy. The tribunal should also have considered the stress which resulted from her having to find a parking space (it was aware of this from the occupational health report from 2012) when considering the particular disadvantage suffered by the claimant. The matter of the reasonable adjustment issue was remitted to the same tribunal to reconsider.
Take note: The decision in Linsley shows how important it is to focus on the particular disadvantage suffered by the employee when it comes to assessing how reasonable the steps taken by the employer are. It's also a salutary lesson to employers to follow their own policies (here the EAT was critical of HMRC's departure from the parking policy without good reason)!
This article is taken from HR Law - April 2019.
