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13 May 2019

165: Employment Appeal Tribunal considers whether failure to provide disabled employee with dedicated parking space breached duty to make reasonable adjustments

Under the Equality Act 2010, if a provision, criterion or practice puts a disabled person at a substantial disadvantage in comparison with those who are not disabled, an employer must make reasonable adjustments to avoid that disadvantage. In Linsley v Commissioners for Her Majesty’s Revenue and Custom (HMRC), the Employment Appeal Tribunal (the EAT) had to consider the scope of this duty where a disabled employee had been refused a dedicated parking space.

Ms Linsley suffered from ulcerative colitis, a disability which meant she might need to use the toilet urgently. HMRC has a national policy on the use of its car parks which states that priority must be given to disabled staff requiring a parking space as a reasonable adjustment. An occupational health report advised that Ms Linsley would benefit from a dedicated parking space in case she needed to go to the toilet urgently, and that her condition was aggravated by stress. From 2012 to 2015, a space was provided. However, when Ms Linsley began working at another site in 2016, she was not given a dedicated space. Instead, HMRC allowed her to have a space near the toilets only if she had failed to get a space near the building on a first come, first served basis. Alternatively, she could park in an unauthorised zone and move her car later on, and HMRC would ensure that she did not incur a sanction. None of these options guaranteed Ms Linsley a space. She went off sick with stress and brought a claim for disability discrimination, alleging that HMRC had failed to make reasonable adjustments.

The Employment Tribunal held that there was no discrimination because the alternative parking arrangements were reasonable adjustments. The Tribunal noted that although HMRC had not followed its own policy on parking allocation, the policy could not be relied on since it was discretionary. Ms Linsley appealed to the EAT, arguing that the Tribunal’s approach was flawed.

Ms Linsley’s appeal was upheld. The EAT found that the Tribunal had been wrong to hold that HMRC’s car parking policy could not be depended on because it was discretionary. Although managers appeared to be unaware of the policy, this was not a good reason for departing from it and the Tribunal had failed to properly consider why the policy had not been applied. The Tribunal had also failed to address the additional stress suffered by Ms Linsley through having to look for a parking space when she arrived at work, which in turn was likely to aggravate her symptoms. This had not been mentioned in more recent medical reports, but it was clear from previous reports and from information provided by Ms Linsley that looking for a parking space was a source of stress. Her case was sent back to the same Tribunal for reconsideration.

When assessing the reasonableness of an adjustment, employers must focus on the particular disadvantage suffered by the employee. This should involve reviewing the full history of medical evidence and correspondence relevant to the employee’s disability, not just the most recent documentation. The EAT stressed in this case that employers should only depart from an adjustment which is recommended in their own policies if they have a good reason for doing so, and whether or not the policy is expressed to be discretionary. If the Tribunal had given the correct weight to the policy in this case, its conclusions on reasonableness might well have been different.

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