Linsley v HM Revenue and Customs

When deciding whether a proposed adjustment is reasonable, an Employment Tribunal must identify the particular substantial disadvantage relied upon and assess whether the employer’s steps avoid that disadvantage. An employer’s relevant adjustment policy is an important factor, even if it is discretionary and non-contractual. A departure from a policy which recommends the adjustment may require a good reason.

The employer need not provide the employee’s preferred adjustment or the best available adjustment. The objective question is whether the adjustment selected is reasonable. However, alternative measures cannot discharge the duty where they address a different disadvantage from the one identified.

The Claimant, who had ulcerative colitis, appealed from the Employment Tribunal’s dismissal of her claim that HMRC had failed to make reasonable adjustments. Occupational Health had recommended a reserved parking space because searching for parking aggravated stress and her symptoms. HMRC’s parking policy gave priority to staff needing a space as a reasonable adjustment, but the Claimant was instead offered non-guaranteed parking options and permission to use certain bays or lay-bys.

The Tribunal held that those arrangements were reasonable, notwithstanding HMRC’s failure to follow its policy. The appeal concerned whether the Tribunal had wrongly discounted the policy, failed to identify the relevant disadvantage, and applied the wrong approach to the reasonableness of the adjustment sought.

1. Appeal allowed. The Employment Tribunal erred in law in concluding that HMRC’s alternative parking arrangements were reasonable. The reasonable-adjustment issue was remitted to the same Tribunal.

2. The relevant national and local parking policies were a material factor in deciding whether providing a dedicated parking space was a reasonable step under Equality Act 2010, section 20(3). The policies provided priority for employees who required parking as a reasonable adjustment following an Occupational Health recommendation. A policy does not have to confer a contractual right before it can be relevant to the statutory assessment.

3. The Tribunal had found that HMRC had breached its policy. Its managers had acted in ignorance of it, which was not a good reason for departing from it. The Tribunal wrongly diminished the policy’s significance by treating it as discretionary and non-contractual. Proper weight to the policy could have led to a different conclusion.

4. The Tribunal also failed to focus on the particular disadvantage relied upon: the stress and uncertainty caused by having to search for an available parking space. The alternatives considered by the Tribunal principally addressed proximity to toilets once parked. They did not guarantee a space or necessarily avoid the stress of searching. Section 20(3) requires a correlation between the disadvantage and the steps taken to avoid it.

5. Although an employer need not choose the employee’s preferred, only possible, or best adjustment, the objective test still requires the adjustment selected to address the relevant disadvantage. Applying Smith v Churchill's Stairlifts PLC [2005] EWCA Civ 1220, the Tribunal’s language was not inherently erroneous, but its analysis was flawed on these facts. The perversity ground did not require determination.

• Employment Appeal Tribunal: allowed the Claimant’s appeal and remitted the reasonable-adjustment issue to the same Tribunal.
• Employment Tribunal, North Shields: dismissed the Claimant’s reasonable-adjustment claim concerning parking, together with her remaining claims.