Unreasonable adjustments - a case for the employer

Under the Equality Act 2010, employers are under a duty to make reasonable adjustments for disabled employees.

Employers face certain challenges when addressing the question of reasonable adjustments. This seems particularly true of impairments where the employee may not be forthcoming with medical information, refuses Occupation Health consent or otherwise obfuscates the employers attempts to understand the condition better.

Frustration can easily follow when employees seek to then dictate to their employer what adjustments ‘must’ be made. It is common, in my experience, to see employees making a swathe of demands, at times tenuously connected with their impairment.

The nature of what is reasonable always depends on the facts of the particular case, but in the recent case of Linsley v HMRC the EAT offered useful guidance on how this duty should be applied in practice.

Facts

Ms Linsley suffers from ulcerative colitis, and one of the symptoms of her condition is the sudden and urgent need for a bowel movement, a problem which is made worse by stress. It was accepted that her condition met the definition of a disability.

She had worked for HMRC over a number of years at several offices, and one of the things that she found difficult and stressful was finding a parking space after her commute to work, which then exacerbated her medical condition. Over the years, Occupational Health had recommended that she should be allocated a designated parking space. In most of the offices she worked at, this was accommodated.

However, when she was placed at one of the offices in Newcastle (Benton Park View) in November 2016, instead of giving her a designated space, they made other arrangements (including that she could park in an ‘essential user’ parking bay if no other spaces were available). To put it into context, there were 8,000 employees at that office with most people parking on a ‘first come first served’ basis, and there were policies in place governing when employees would be eligible for a designated space.

The Claimant raised a grievance and appeal, and ultimately brought an Employment Tribunal claim regarding the failure to designate her a parking space.

The decision

The matter went to a five day Employment Tribunal hearing, and the Tribunal concluded that HMRC had made reasonable adjustments. It hadn’t followed its policies, but they were non-contractual and therefore not material. The adjustments made were not the adjustments the Claimant was asking for, and they weren’t the ‘best solution’, but they were reasonable in the circumstances. Therefore Ms Linsley’s claim was dismissed.

She appealed to the EAT. The EAT disagreed with the Tribunal and found that HMRC’s failure to follow its own policy was highly relevant. The fact that it was a non-contractual policy did not mean it was not relevant. In particular, the EAT said that:

“An adjustment which is recommended in an employer’s own policy is one that is likely, at least as a starting point, to be a reasonable adjustment to make.”

The EAT also said that the Tribunal had misunderstood the disadvantage that Ms Linsley had been complaining of. It was not that she needed to be able to park near to a toilet. What she had been seeking to avoid was the stress of not knowing where she would be able to park. The misunderstanding of the disadvantage meant that the Tribunal had failed to properly consider the question of reasonableness. The case was therefore sent back to the Tribunal to reconsider the issue.

With regard to the Tribunal’s conclusion about the ‘best solution’, the EAT agreed, saying in particular that:

“An employer is not required to select the best or most reasonable of a selection of reasonable adjustments, nor is it required to make the adjustment that is preferred by a disabled person.”

“So long as the particular adjustment selected by the employer is reasonable, it will have discharged its duty.”

Conclusion

The facts of this case are slightly unusual, in that I think most employers probably would have preferred to designate a parking space rather than end up dealing with the expense and hassle of a five day Tribunal hearing. Nevertheless, it does establish some useful principles which employers should be aware of.

In particular, an employer does not necessarily have to accommodate the specific adjustment(s) that the employee is asking for, nor does it have to find the ‘best’ solution.

Start by considering what detriment the employee suffers as a result of the impairment and whether there is a practical solution. Medical guidance can be helpful here however common sense is often the best starting point, along with purposive dialogue between the employee and employer.

If an adjustment is made that is reasonable, then the duty will have been satisfied. In practice, if there is a dispute about whether an adjustment is reasonable, the best approach would be to maintain dialogue with the employee, including following up post-implementation of the adjustment, as well as seeking advice from Ellis Whittam.