Disability Discrimination: Making the most reasonable adjustments to overcome the employee’s disadvantage
In Linsley v Commissioners For Her Majesty’s Revenue And Customs UKEAT/0150/18/JOJ Mrs Linsley was employed by HMRC. She has a condition called ulcerative colitis, and it means she needs easy access to toilets and the condition is exacerbated by stress. On the advice of OH she was allocated a dedicated parking space near one of the buildings, to allow her easy access to the toilet. This was part of HMRC’s policy for disabled employees, seen by them as a reasonable adjustment. When she moved sites in 2016, she requested an allocated parking space at the new site. This was refused with an alternative suggestion: a parking space near the toilets was offered but, on a first-come, first-served basis. If she was unable to locate a space after driving around, she could then park in an unauthorized zone (which would incur a notional sanction, but it would not apply to her) and then she would have to move the car later on. She found this to be very stressful, and thus exacerbated her condition. It was not a suitable adjustment and she brought a claim of disability discrimination on the grounds they had failed to make reasonable adjustments.
The employment tribunal considered that HMRC had made reasonable adjustments with its alternative arrangements, thereby discharging its legal obligation, though it noted that they had failed to comply with their own parking policy. However, as this was determined to have been a discretionary policy in any event, Mrs Linsley was not entitled to rely on it.
On appeal, however, the EAT found the tribunal had erred in assessing the reasonableness of the alternative and that an employer should have to provide a more compelling reason for failing to apply their own parking policy. In addition, they pointed out that a policy does not have to be contractual to be considered in terms of making a reasonable adjustment. The stress caused to Mrs Linsley by the alternative was also highly relevant when assessing the reasonableness of the alternative arrangements and the tribunal had failed to focus on this correctly. Interestingly, the EAT confirmed that an employer does not have to select the adjustment the employee requests, and where there are several possible adjustments it does not have to select the best or most reasonable adjustment, provided that the adjustment selected is reasonable and overcomes the disadvantage to the employee.
The EAT allowed the appeal and remitted the case for the same tribunal to consider the reasonable adjustment issue.
Published: 17 May 2019
Article Sections: Discrimination