In this case, an employee suffered from ulcerative colitis, a condition which could manifest itself in a sudden, unpredictable need for a bowel movement and could be aggravated by stress. In 2012, an occupational health (OH) report stated that the employee would benefit from a dedicated parking space in order to avoid the stress of looking for a place to park her car. A further report advised that the space should allow her to reach a toilet urgently. She was provided a disabled parking space for blue badge holders.
Issues arose in 2016 when the employee began working at another site. Instead of a specific parking space, she was permitted to park near to the toilets if she failed to get a space near the building on a first come, first served basis or, failing this, she was able to park in an unauthorised zone without incurring a parking sanction, although she would later be required to move the vehicle.
The organisation had a national policy in place outlining that priority needed to be given to staff requiring a parking space as a reasonable adjustment, whether they had a blue badge or not. Although it was conceded that the alternative arrangements put in place did guarantee the employee a space at all times, the employee claimed that the time spent looking for a space caused her to become stressed and exacerbated her condition. She later brought a claim to the employment tribunal (ET) for disability discrimination.
The ET dismissed her claim.
Although the tribunal did find that the organisation had clearly failed to comply with its own policy on parking space allocation, they concluded that the policy was not a contractual right and therefore discretionary. Taking a closer look at the alternative adjustments in place, they found that these were sufficient to not have breached the duty to make reasonable adjustments despite them not being what the employee had wanted.
The employee appealed against this decision to the Employment Appeal Tribunal (EAT) on the following grounds:
- the tribunal had erred in finding that the car parking policy could not be relied upon as it was discretionary
- the tribunal had failed to address the stress caused by the employee having to look for a car parking space, and the impact it would have on her symptoms
- the tribunal had applied the wrong test in determining whether the adjustment was the ‘only possible’ reasonable adjustment.
The EAT upheld her appeal on all grounds, remitting the case back to the tribunal to reconsider the reasonable adjustment issue. In their judgement, they considered each ground in turn.
Failure to consider the relevance of the policy
They outlined that when a tribunal is assessing reasonableness, a key factor they should always consider is if there is a policy in place as any adjustment recommended within this is one that will be likely to be reasonable to make. When applied to this case, the only explanation the tribunal could find for the organisation breaching their policy was that the managers in question had not been aware of it. By referring to the policy as non-contractual, the ET had incorrectly diminished its significance. The EAT concluded that, had the ET given it appropriate weight, their overall conclusion could have been different.
Failure to consider the stress of looking for a space
It was clear to the EAT that the organisation should have been aware that looking for a space was a source of stress for the employee, as the OH report from 2012 had confirmed this. The absence of an explicit reference to this stress in later reports did not serve to remove this awareness. Had the tribunal focused on that specific disadvantage it might have concluded that the alternative arrangements put in place would do little to avoid that particular disadvantage.
‘Only possible’ adjustment
The EAT explained that for any disadvantage there may be a number of adjustments made and organisations are not required to select the best or most reasonable one so long as the adjustment selected is reasonable. Therefore, whilst it was not necessarily incorrect for the tribunal to say that the dedicated parking space was not the only possible adjustment, the alternative arrangements failed to address the disadvantage caused by searching for a space.
A failure by an organisation to focus on a particular disadvantage could lead to a breach of the duty to make reasonable adjustments even if adjustments have already been made to address other issues.
This case also highlights the importance that all managers are familiar with any policy on reasonable adjustments as the organisation will likely fail in its duty if it does not follow its own policies or had no reason for not doing so. If an organisation departs from this policy, it should have a good reason for doing so.