Employment Appeal Tribunal Considers Whether Failing to Allocate a Dedicated Parking Space was a Failure to Provide Reasonable Adjustments
In Linsley v Commissioners for Her Majesty's Revenue and Custom UKEAT/0150/18 the Employment Appeal Tribunal (‘EAT’) considered whether the employer (‘HMRC’) failed to make reasonable adjustments by failing to provide the Claimant with a dedicated parking space.
The Claimant commenced her employment with HMRC in 2001 and suffered from ulcerative colitis which amounted to a disability. The effects of the condition can cause an individual to need to go to the toilet urgently and it can also be aggravated by stress.
The Claimant was provided with a dedicated car parking space in 2012, following an Occupational Health report recommending the adjustment. The allocation of a car parking space was in accordance with HMRC’s national policy on the use of its car parks, whereby priority is to be given to staff requiring a parking space as a reasonable adjustment.
In November 2016, the Claimant began working at a new site and was allocated 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. In the alternative, she could park in an unauthorised zone, incurring a notional sanction which HMRC would ensure was not applied to her. This was in contrast to the dedicated car parking space she had received previously. In light of HMRC’s proposals, the Claimant went off work with stress. Reports from Occupational Health highlighted that stress was a trigger for her condition and that HMRC had not put in place recommendations previously made, thus exacerbating her symptoms.
The Tribunal originally held that whilst HMRC did not comply with its own policy in allocating the car parking space (although this right was discretionary), the arrangements it had made were reasonable adjustments.
On appeal, the EAT found that the Tribunal was wrong to find that the adjustments implemented were reasonable. The EAT held that the Tribunal should have considered HMRC’s policy when considering the reasonableness of the adjustment and as a starting point the recommended adjustment in a policy is likely to be a reasonable adjustment. Whilst it recognised that there may be good reasons to depart from an employer’s policy it considered that employers should be able to provide cogent reasons for doing so. In this case, the EAT considered that there wasn’t a good reason not to follow the policy as the decision was taken by managers acting in ignorance of the policy.
The EAT also considered the impact of the policy being discretionary and held that a policy does not have to be a contractual policy for it to be relevant to the question of reasonableness.
The EAT also found that the Tribunal failed to give due weight to the employee’s particular disadvantage (stress). This decision was based on the fact that HMRC ought to have been aware from around 2012 that looking for a parking space was a source of stress for the Claimant given that an Occupational Health report at this time and the Claimant’s comments made this clear. Therefore, in this case, it was relevant to consider the stress caused for the Claimant through having to find a parking space when determining whether the adjustment was reasonable.
This decision shows the importance of focussing on all of the disadvantages suffered by an employee when assessing whether an adjustment is reasonable. Consequently, an employer should review all matters comprehensively especially when there is a long history of medical evidence and correspondence to ensure that all disadvantages known to the employer are considered when making decisions.
The case also provides guidance in relation to the effect employer’s policies will have in determining whether an adjustment is reasonable. The EAT’s comments suggest that an employer is unlikely to discharge the duty to make reasonable adjustments if it does not follow its own policies unless it has a cogent reason for doing so, as the failure to follow internal policies is relevant for the determination of the reasonableness of an adjustment.
This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.
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