Assessing the reasonableness of a reasonable adjustment
The case of Linsley v Commissioners for Her Majesty’s Revenue and Customs (HMRC) focused on the issue of reasonableness as it pertains to making reasonable adjustments at work to accommodate a disabled employee. In this case, the Employment Appeal Tribunal (EAT) were ultimately tasked with deciding whether the employer’s efforts could be called into question.
The employee in this case suffered from ulcerative colitis, a condition that could manifest itself in a sudden, unpredictable need for a bowel movement. This condition could be aggravated by stress, therefore, under the orders of several Occupational Health reports the employee was provided with a dedicated parking space near one of the office buildings. This was designed to allow her to reach a toilet urgently and remove the stress of having to find a parking space each day.
However, in 2016 the employee moved sites and was not provided with a dedicated parking space at this new location. Instead, parking was arranged on a first come first served basis and the employee was permitted to park either near the toilets if she could, or alternatively park in an unauthorised zone without incurring a parking sanction, although she would later be required to move the vehicle.
Interestingly the employer had a specific policy in place outlining that priority needed to be given to staff requiring a parking space as a reasonable adjustment. Therefore, although the employee conceded that these alternative arrangements did guarantee her access to a space at all times, she claimed that the time spent looking for a space caused her to become stressed and exacerbated her condition.
She proceeded to bring a claim to an employment tribunal (ET) for disability discrimination on the basis that the employer had failed to put in place reasonable adjustments. However, the ET dismissed this claim, finding that the adjustments in place were sufficient to not have breached the duty to make reasonable adjustments, despite them not being what the employee would have preferred. Additionally, although the ET did find that the organisation had clearly failed to comply with its own policy on parking space allocation, they concluded that the policy was not a contractual right.
Unhappy with the outcome, the employee appealed this decision to the EAT, where it was upheld on all grounds and remitted back the ET to reconsider. In their judgement the EAT confirmed that the initial ET failed to consider the relevance of the employer’s policy in this situation when assessing reasonableness. In their view, by referring to the policy as non-contractual, the ET had incorrectly diminished its significance.
The initial ET was also said to have failed to properly consider the stress of looking for a space, as this was the issue that any adjustment should have been attempting to resolve, adding that the alternative arrangements provided by the employee failed to address the disadvantage caused by searching for a space.
In summary, this case acts as a useful example of how employers ought to approach issues involving reasonable adjustments, particularly that focus should be on the particular disadvantage suffered by the employee when assessing the reasonableness of the steps taken by the employer. It also emphasises that where there is more than one disadvantage involved, employers must consider whether the reasonable adjustment has the desired effect for both. Here, the employer had only considered the effect of the colitis, not the fact that this was exacerbated by stress.