07 Aug 2019
The Employment Appeal Tribunal (EAT) has ruled that when making a reasonable adjustment to assist a disabled employee, the adjustment should counteract the specific disadvantage caused by the disability.
Linsley v Commissioners for HMRC
What is a ‘reasonable adjustment?’
In legal terms, it is when a provision, criterion, or practice by an employer places a disabled employee at a substantial disadvantage in comparison with a non-disabled employee, and the employer must take steps to avoid this disadvantage.
In simpler terms, it is a change to the workplace that allows people with a disability to work safely and without disadvantage.
Background to the case
An employee suffered from ulcerative colitis—a condition that could manifest itself in a sudden, unpredictable need for a bowel movement.
Ulcerative colitis can be aggravated by stress. The main source of stress for this individual was searching for a place to park her car.
Occupational Health (OH) reports had previously advised that she would benefit from a dedicated parking space as a reasonable adjustment.
Initially, the employer provided this.
However, the employee later moved sites and was not provided with a dedicated parking space.
Instead, alternative adjustments were put in place that allowed her to park in disabled bays or, if there was no space, in a parking controlled zone, with the provision that she would move her car later.
Her employer had a nationwide company policy in place outlining that priority needed to be given to staff requiring a parking space as a reasonable adjustment.
Following the move, the employee claimed that the time spent looking for a space caused her to become stressed and exacerbated her condition.
She later brought a claim to the employment tribunal (ET) for disability discrimination.
What did the tribunal say?
The tribunal initially dismissed her claim.
They did find that the employer had failed to comply with the company’s policy on parking space allocation. However, they concluded that the policy was not a contractual right and could therefore not be relied upon.
The tribunal wasn’t satisfied that a dedicated parking space was the best solution, or only solution, to the employee’s disadvantage.
What did the Employment Appeal Tribunal say?
The employee appealed against this decision to the Employment Appeal Tribunal (EAT). The EAT upheld her claim and asked the tribunal to reconsider the case.
They found that the only reason the employer had for not following their policy was that managers had not been aware of it.
If the employer wished to depart from their parking space allocation policy, they needed a good reason to do so.
They also concluded that the employer should have been aware that looking for a space was a source of stress for the employee as previous OH reports highlighted and confirmed this.
The EAT outlined that, whilst it wasn’t incorrect for the tribunal to say that the dedicated parking space was not the only possible adjustment, the alternative arrangements provided failed to address the disadvantage caused by searching for a space.
What should you do to avoid a similar situation?
So… what should you be wary of when providing reasonable adjustments in your workplace?
Here are the main points to consider:
- When assessing how to remove a disadvantage through a reasonable adjustment, address the disadvantage directly, do not defer to a different company policy.
- Failure to do this could result in a breach of duty, even if you’ve made adjustments to address other issues.
- All managers should be familiar with any policy on reasonable adjustments.
- As the adjustments are highly likely to be considered ‘reasonable’, you will need to provide an explanation to the tribunal as to why they were not followed.
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