Summary: If an employer has a policy which refers to a specific adjustment, are they required to make that adjustment for a disabled employee?
Yes, says the EAT in Mrs M Linsley v Commissioners for Her Majesty’s Revenue and Customs, available here.
Facts: Mrs Linsley, the employee, is employed by HMRC. Mrs Linsley has ulcerative colitis which can make her need to go to the toilet urgently, can flare up and down, and can be aggravated by stress. HMRC has a national policy on the use of its car parks. This policy is that priority is to be given to staff requiring a space as a reasonable adjustment.
For several years, Mrs Linsley was given a dedicated parking space so that she would be near a toilet when she parked. This was as advised by Occupational Health (OH) reports, which also highlighted that stress can aggravate the condition.
However, in 2016, Mrs Linsley started working at another site. She was not given a dedicated parking space, but instead was told she could use “essential user bays” if she could not get a space when she arrived on a first come, first served, basis. This would require her to sign paperwork (although without the need to explain her condition). Alternatively, she could park in an unauthorised zone, which would incur a notional sanction which HMRC would ensure was not applied to her. She would also be required to move her car later. Neither of these options guaranteed her a space.
Mrs 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 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.
Mrs 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. If the employer does depart from a policy, it should be able to give a cogent reason for doing this. The only explanation here for HMRC’s departure from the policy was that the relevant managers were ignorant of the policy. This was not a good reason for failing to comply with the policy. The fact that the policy is not contractual does not mean that it is irrelevant when considering the reasonableness of the adjustment; 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.
The EAT considered the Tribunal’s comment that the reasonable adjustment requested by Ms Linsley was not the only possible or best solution. However, the EAT pointed out that an employer is not required to select the best or most reasonable of adjustments, nor is it required to make the adjustment preferred by the disabled person. So long as the particular adjustment selected by the employer is “reasonable” it will have discharged its duty.
Implications: This case makes it clear that employers must focus on the specific 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. Employers should also make sure that they look at all evidence relating to the reasonable adjustments, not just the most recent OH reports.