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Disability Discrimination – June 2019

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Disability Discrimination and Reasonable Adjustments

Under the Equality Act 2010, employers have a duty to make reasonable adjustments for disabled job applicants, employees and previous employees. The duty to make reasonable adjustments is unique to the protected characteristic of disability. Where the duty arises, the employer must effectively treat the disabled person more favourably than other in an attempt to reduce or remove that individual’s disadvantage. In the recent case of Mrs M Linsley v Commissioners for her Majesty’s Revenue and Custom, the Employment Appeal Tribunal (EAT) provided guidance on making reasonable adjustments for disabled employees.

The Facts

Ms Linsley, who was employed by HMRC, had ulcerative colitis, which is classified as a disability. The condition can make individuals need to go to the toilet urgently, flare up and be aggravated by stress. HMRC has a national policy on the use of its car parks, priority is provided to staff who require a parking space as a reasonable adjustment, whether or not they are blue badge holders. Following a visit to HMRC’s Occupational Health Service in September 2015, it was stated that Ms Linsley “would benefit from access to a parking space on the site near to one of the buildings so that she can get to the toilet facilities urgently, should she need to, due to physical symptoms related to her ulcerative colitis”. Ms Linsley was therefore granted a dedicated parking space at the current site she was working at. When Ms Linsley moved sites in November 2016, she was not given a dedicated parking space despite multiple Occupational Health reports that stated she should be granted this. Instead, it was arranged that Ms Linsley could park in a layby near the offices in an emergency, however she would be required to move the vehicle as soon as she was able. Ms Linsley continued to be aggrieved by the failure to provide a dedicated parking space and was signed off from work due to stress.

The Decision

Ms Linsley issued proceedings in the Tribunal complaining that she had been discriminated against on the grounds of disability, in that HMRC had failed to make reasonable adjustments and that she had been subjected to harassment. Ms Linsley’s claims were dismissed in the Tribunal and she appealed.

The EAT allowed the appeal and remitted the case to the same Tribunal to reconsider the reasonable adjustments issue. The EAT stated that:

1) an adjustment that is recommended in the employer’s own policy is likely to be a reasonable adjustment to make. An employer must have a clear and convincing reason for departing from its policy, even if it is discretionary. Here, the only explanation was that the relevant managers did not know about the policy; and

2) in assessing reasonableness, the particular disadvantage suffered by the employee should be considered. Here, the Tribunal had failed to consider the stress caused to Ms Linsley in having to search for a parking space.

Employers should ensure that they take all the necessary steps to consider whether reasonable adjustments need to be made for disabled employees. At FTA Law we can offer advice on all aspects of an employer’s duties towards their employees, including the duty to make reasonable adjustments.

Please contact us on 0330 088 2275 for further information.

The team at FTA Law provides advice to clients across the commercial and healthcare sectors with many of our instructions coming from referrals from long standing clients and industry contacts.

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