Explaining employers’ duties to make reasonable adjustments

A recent EAT decision is a useful reminder of employers’ obligations to make reasonable adjustments, as Homa Wilson explains

In Linsley v Commissioners for Her Majesty’s Revenue and Customs (HMRC), Ms Linsley began working for HMRC in 2001. She suffers from ulcerative colitis. Her condition requires her to have easy access to toilets and is exacerbated by stress.

Occupational health had recommended she be provided with a dedicated parking space near one of the buildings, to allow her easy access to the toilet.

An important factor in this case was that HMRC has a policy of giving disabled staff priority when allocating parking spaces. This is recognised by HMRC as a reasonable adjustment.

Until 2015, Linsley had a dedicated parking space. In 2016, she moved to a new site and her request for a dedicated parking space was refused. Instead, HMRC provided her with an alternative, which it considered to be an equivalent. 

The alternative adjustments offered consisted of a parking space near the toilets, if Linsley failed to get a space near the building (and toilets), on a first-come first-served basis. This would require her to first drive around and try and find a space (which caused her stress). She would also be required to sign paperwork with the office. Alternatively, she could park in an unauthorised zone, incurring a notional sanction, which HMRC would ensure was not applied to her. She would also have to later move the vehicle.

No consideration was given to the stress caused to Linsley as a result of not having a dedicated parking space and HMRC gave no explanation as to why it was not complying with its own parking policy.

In April 2017, Linsley brought a claim for disability discrimination, alleging a failure to make reasonable adjustments. 

Employment tribunal’s decision 

The tribunal considered that the alternative arrangements amounted to reasonable adjustments – HMRC had therefore discharged its legal obligation and there was no breach.

While the tribunal noted that HMRC had failed to abide by its own parking policy, it determined that because the policy was discretionary, it could not be depended upon.

EAT’s decision 

The EAT allowed the appeal and remitted the case for the same tribunal to consider the reasonable adjustment issue.

The EAT held:

  • The tribunal erred in the approach it took to HMRC’s parking policy. When assessing reasonableness, the employer ought to be able to provide a cogent reason for departing from its own policy. The only explanation provided by HMRC was that the manager had acted in ignorance of it.
  • The EAT also decided that the tribunal had incorrectly diminished the policy's significance by referring to it as discretionary. A policy does not need to be contractual when determining the reasonableness of an adjustment. 
  • The tribunal further erred when assessing the reasonableness of the adjustment because it failed to focus on the particular disadvantage suffered by Ms Linsley. The EAT held that the stress caused to Ms Linsley was relevant in assessing the reasonableness of the steps taken by HMRC. 

The duty to make reasonable adjustments is fraught with difficulty for employers. It is not always obvious when an employee’s condition amounts to a disability and therefore whether the duty is triggered. Also, employers are uncertain as how far they need to go to discharge the duty – the question of whether the adjustment is reasonable is judged objectively. The fact an employer has been sympathetic and believes the steps it has taken are reasonable is not necessarily sufficient. 

When considering what adjustments to make, employers should consider:

  • An employer is unlikely to be able to show that it discharged its duty to make reasonable adjustments if it failed to follow its own policies – regardless of whether the policy is contractual or discretionary. 
  • Where there is no written policy, employers should consider whether there is a custom or practice of making certain adjustments and also consider those.
  • Where an employer departs from its policy or practice, it should be prepared to explain that adjustments were considered and if they were not made, give a persuasive reason why;
  • A refusal to make adjustments should be set out in writing, as it will be important evidence. It should explain the employer’s thought process, that it considered the disadvantage faced by the employee, cite the medical, as well as other evidence that has been considered and state why the adjustment is not possible. 

Employers should focus on the particular disadvantage suffered by the employee when assessing the reasonableness of the steps it is required to take. This will involve reviewing medical evidence, speaking to the employee to try and understand the disadvantage experienced, inviting her to put forward options for adjustments and considering the relevant medical evidence. 

The employer should review matters comprehensively and not base its decision only on the most recent medical evidence. If necessary, obtain further medical evidence before making a decision.

Homa Wilson is a partner in the employment law team at Hodge Jones & Allen