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Can Policies Be Relevant to the Reasonableness of Adjustments?

on Friday, 12 April 2019.

An employer's discretionary and non-contractual policy was held to be relevant to the question of whether it would have been reasonable to make a particular adjustment for a disabled employee.

The fact that the policy suggested making the adjustment in question meant that, as a starting point, the adjustment would have been a reasonable one.

Linsley v Commissioners for Her Majesty's Revenue and Custom

Mrs Linsley was employed by HMRC. She suffered from ulcerative colitis, which was accepted as amounting to a disability for the purpose of the Equality Act 2010. The condition can flare up and down, be aggravated by stress, and make someone need to go to the toilet urgently.

HMRC's Occupational Health Service (OHS) recommended that Mrs Linsley be given an allocated parking space to avoid the stress of looking for parking when she arrived at work. Subsequent OHS reports from 2015 to 2017 noted that stress aggravated Mrs Linsley's symptoms and recommended that she have a parking space near to one of the buildings and to enable quick access to toilet facilities.

Mrs Linsley had an allocated parking space from 2012 until November 2016 when she started working at HMRC's Benton Park View site. She requested a dedicated parking space at Benton Park View however HMRC did not agree to this and instead, gave her permission to park in the 'essential user' parking bay near the office or, in an emergency, in a layby near the office. None of these arrangements guaranteed Mrs Linsley a parking space.

Mrs Linsley made a number of claims to the Employment Tribunal (ET)  on the basis that HMRC had failed to make reasonable adjustments in respect of parking arrangements.

The ET acknowledged that, by not providing Mrs Linsley with a dedicated parking space, HMRC had failed to comply with its own policy on parking allocation, which gave priority to staff members requiring a parking space as a reasonable adjustment due to a disability.

However the ET noted that this policy was non-contractual and although the alternative parking arrangements were not what Mrs Linsley wanted, they were sufficient to discharge HMRC's obligation to make reasonable adjustments. Mrs Linsley's claim was therefore dismissed.

Mrs Linsley appealed.

The Employment Appeal Tribunal's Decision

The Employment Appeal Tribunal (EAT) found that HMRC's parking policy deserved more consideration than the ET had given it. Despite being discretionary and non-contractual, it was relevant to the question of whether the adjustment recommended was reasonable or not. An adjustment recommended by an employer's own policy was likely, at least as a starting point, to be a reasonable adjustment to make. The EAT commented that whilst there may be good reasons for an employer departing from its policy, the employer ought to be able to provide a cogent reason for doing so.

The EAT also found that the ET had failed to correctly identify the particular disadvantage which Mrs Linsley required reasonable adjustments to address. The most recent OHS reports had referred to the need for parking to be near toilets, and this is what HMRC's adjustments had addressed.

However the disadvantage in issue was actually the stress caused to Mrs Linsley by having to search for a parking space, which exacerbated the symptoms of her ulcerative colitis.. The adjustments made by HMRC did not guarantee a parking space and so did little to avoid that particular disadvantage.

The case has been remitted to the ET to reconsider the issue of reasonableness.

What Can Employers Learn from This Case?

This case serves as a reminder of the importance of carefully drafting policies and procedures, making sure staff are aware of them and abiding by them unless there is a good reason not to.

Even if a policy is stated to be non-contractual and discretionary, it may be relevant to deciding an issue in a subsequent legal case, and an employer should be ready to provide good evidence of the reasons for any departure from its own policy.

For more information, please contact Katie Hurst in our Employment Law team on 0121 227 3751.

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