A reference to an adjustment for disabled employees in an employer’s own policy will be relevant in determining whether there is a duty to make that adjustment, notwithstanding that the policy may be expressed to be discretionary. In Linsley v Commissioners for HMRC, the EAT held that an adjustment that is recommended in the employer’s own policy is one that is likely, at least as a starting point, to be a reasonable adjustment to make. While there may be good reasons for departing from the policy, in such cases the employer ought to be able to provide a cogent reason for doing so.

The employment tribunal had erred in not properly taking into account the existence of the employer’s policy (of giving priority over dedicated parking spaces to disabled employees) when deciding that there was no breach of the duty to make reasonable adjustments. The employee needed urgent access to toilet facilities but, instead of a dedicated parking space near the office building, was offered alternative, less satisfactory options should she fail to get a space near the building on a first come, first served basis. The tribunal should also have taken into account the stress she suffered as a result of having to find a space, an issue which had been raised at an earlier point; the absence of an express reference to it in later reports did not mean that the employer was unaware of it. Where there is a long history of medical evidence and correspondence about a medical issue, an employer should review matters comprehensively and not base its approach on the most recent evidence only. The case was remitted to consider the issue of reasonableness.

Anna Henderson
Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819