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Recommendation in employer’s policy likely to be a reasonable adjustment

05 April 2019 #Employment

In Linsley v Commissioners for Her Majesty's Revenue and Custom, the Employment Appeal Tribunal (EAT) has given guidance on how a Tribunal should approach the issue of reasonableness in cases relating to reasonable adjustments for disabled employees.

The Claimant suffered with a disability, the symptoms of which included an urgent need to go to the toilet.  This condition could be aggravated by stress. The Claimant worked for HMRC whose national policy on parking spaces was to prioritise those who needed spaces as a reasonable adjustment. Upon medical advice, the Claimant was given a dedicated parking space close to toilet facilities.  However, when she moved sites, she was not given a dedicated parking space.  She could still have a space near to toilet facilities but this required her to sign in at the office. Alternatively, she could park in an unauthorised zone, incur a sanction then apply for this to be disapplied (which HMRC had agreed would happen).  The Claimant was signed off with stress which exacerbated her symptoms.  She brought a claim against HMRC for failure to make reasonable adjustments (amongst other things).

The Employment Tribunal held that there had been no breach as the alternative arrangements were reasonable adjustments. Whilst it noted the failure by HMRC to follow their own policy, this was held to be a discretionary policy and could not be relied upon.  However, the EAT upheld the Claimant’s appeal of this decision.  It found that:

  • An adjustment that is recommended in the employer's own policy is likely to be a reasonable adjustment to make. Any reason for departing from this must be based on cogent reasoning which was not the case here. The fact that the policy was discretionary was irrelevant for determining the reasonableness of an adjustment.
  • When considering the particular disadvantage suffered by the Claimant, the tribunal ought to have considered the stress which resulted from her having to find a parking space (not just the need for her to be able to park near toilet facilities).

The case is a useful reminder to always focus on the disadvantage to the relevant employee when considering adjustments. If there is a company policy, then this should be followed unless careful consideration has been given to departing from the policy and there are persuasive reasons for doing so.

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