Where an employer have a policy or practice which puts a disabled worker at a substantial disadvantage compared to someone who isn’t disabled, it must take reasonable steps to avoid the disadvantage.
Mrs Linsley has ulcerative colitis – a disability under the Equality Act 2010. The condition involves an unpredictable, sudden and urgent need to go to the toilet and can be aggravated by stress.
Mrs Linsley drove to work. An Occupational Health assessment stated that she would benefit from a car park space to avoid the stress of looking for a place to park. Stress aggravated her symptoms so a dedicated parking space was provided.
However, when Mrs Linsley moved to a different site, she was not provided with a dedicated parking space. Her manager was not aware of the employer’s policy that gives priority to staff requiring a parking space as a reasonable adjustment under the Equality and her requests for a space were declined.
However, her employer did allow her to use an ‘essential user’ parking bay (which was near the entrance) if she failed to get a space near the building on a first come first served basis or to park in a layby near the offices in an emergency and a number of other adjustments including changes to her role, reductions in her hours, locating her workstation close to the toilets, permitting a phased return to work after absences, providing regular breaks to use the toilet, discounting disability-related sickness absence and providing flexible working hours
Mrs Linsley issued a claim in the Employment Tribunal of disability discrimination, complaining that the employer had failed to make a reasonable adjustment in respect of her disability.
She argued that her condition required that she had easy access to a toilet in an emergency on arrival at work; and that a dedicated parking bay would reduce her anxiety which exacerbated her condition.
The Tribunal found that she was allowed to park in any available space, wherever it was situated, which could be close to one of the buildings, all of which had toilets. She was also allowed to use the laybys, which were closer to the buildings and the toilets. She was also allowed access to the essential user parking bays, where there were likely to be spaces, and which were at her preferred entrance to the site. It found that the employer failed to comply with its own policy on parking space allocation, but that this policy was discretionary, not contractual.
The Tribunal went on to find that the employer did make a reasonable adjustment:
“It may not have been the best and it was not what the Claimant wanted but it was sufficient for the Respondent to discharge its obligations to the Claimant”.
Mrs Linsley appealed to the Employment Appeal Tribunal (EAT). She argued that if there were no parking spaces readily available when she arrived at work, this increased her anxiety which in turn aggravated her condition.
The EAT found that an adjustment recommended in an employer’s own policy is one that is likely to be a reasonable one. As the Tribunal found that the employer was in breach of its own policy, it followed that a parking space should have been provided. The managers’ ignorance of the policy was not a good reason for not applying it. Importantly, the policy does not need to be contractual for an adjustment to be reasonable.
The EAT also found that the Tribunal ought to have considered the particular disadvantage that is being relied on when deciding whether an adjustment is reasonable. For Mrs Linsley, the disadvantage was the stress caused by having to search for a parking place. The adjustments that were made did not address the disadvantage, but addressed a different one of ensuring that she could park near to a toilet. Therefore, the adjustments made may not have been reasonable.
What should employers learn?
As the EAT noted, for any disadvantage, there may be a number of adjustments that could be made, each of which might individually be reasonable.
Employers are not required to select the best or most reasonable of a selection of reasonable adjustments, or to make the adjustment that is preferred by the individual. The test of reasonableness is an objective one to be determined by the Employment Tribunal. “So long as the particular adjustment selected by the employer is reasonable it will have discharged its duty”. However, the focus must be on the particular disadvantage suffered by the employee when assessing the steps taken by the employer.
Despite the sympathy and consideration by the employer, and that it made many adjustments to accommodate her condition, the employer still lost – the adjustment of providing a dedicated parking space, which had been requested by the Claimant and recommended in OH reports, had not been made.
It is worth remembering that even if an employer has made great efforts to assist a disabled employee, if an Employment Tribunal decides that they have failed to make one adjustment which would have assisted the employee and which is reasonable, then the employer may lose a disability discrimination claim.