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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Linsley v HM Revenue and Customs [2018] UKEAT 0150_18_0712 (7 December 2018) URL: https://www.bailii.org/uk/cases/UKEAT/2018/0150_18_0712.html Cite as: [2018] UKEAT 150_18_712, [2018] UKEAT 0150_18_0712, [2019] IRLR 604 |
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At the Tribunal | |
Before
THE HONOURABLE MR JUSTICE CHOUDHURY
MS V
BRANNEY
MISS S M WILSON CBE
![]() | APPELLANT |
![]() ![]() ![]() ![]() ![]() ![]() ![]() | RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR ANTOINE TINNION (of Counsel) Instructed by: Paul Doran Law Churchill House 12 Mosley Street Newcastle-Upon-Tyne NE1 1DE |
For the Respondent | MR ANDREW WEBSTER (of Counsel) Instructed by: Government Legal Department One Kemble Street London WC2B 4TS |
SUMMARY
DISABILITY DISCRIMINATION Reasonable adjustments
The Tribunal erred in its approach to the Respondent's policy on parking, which was clearly a relevant factor to be taken into account in determining the claim on reasonable adjustments. The Tribunal also erred in its assessment of the reasonableness of the adjustment in question in that it failed to focus on the particular disadvantage suffered by the Claimant, namely the stress of having to look for a parking place.
The case would be remitted to the Tribunal to reconsider the reasonable adjustment issue.
THE HONOURABLE MR JUSTICE CHOUDHURY
Factual background
"83. Benton ParkView
is a large site operated by the Respondent where about 8000 employees work. There are two entrances that give access by roadways and walkways to a series of offices. Some parts of the road system are used on a one-way basis. Around the offices, there are numerous car parks. At both entrances, there are security offices. Once cleared to enter the site, access to the car parks and the offices is unlimited. Near the main entrance, there is a reception area with parking areas restricted to use by
visitors.
Most of the other parking spaces are on a 'first come' basis but some parking bays have dedicated users and one car park is limited to essential users. Parking is normally restricted to the car parks but some on-road parking is permitted for delivery
vehicles.
There are toilets in the reception area and near the entrances of all of the office buildings. Near the office where the Claimant works, there are laybys on both sides of the road where limited parking is available".
"Provision of a disabled car park space agreed at BVP office, despite not being a blue badge holder, agreed that a car parking space will be provided at Essential User Bays which are situated at Ainthorpe Gardens should Mandy not get space on site when she arrives at work. If Mandy parks in these bays she will have to sign the relevant paperwork at security."
"In due course, Mr Atkinson became aware of the parking problem. Although Mr Atkinson normally left such matters to those with immediate responsibility for the employee involved, he took a personal interest in the Claimant's problem over obtaining a dedicated parking bay. He was aware of the Claimant's condition and that she had had a dedicated bay at Washington. He had the impression that dedicated bays were only provided on medical grounds to blue badge holders. However, he contacted Kath Scott from the PT OperationsCustomer
Services Delivery Area and asked that an exception be made for the Claimant. In response, he was informed that an exception would be made but only so that the Claimant could use an essential user parking bay, which was near the entrance normally used by the Claimant, whenever she wished. This would be cleared with security so that the Claimant only had to sign in when using one of these bays. The Claimant would not have to declare her condition when using a space and security would not be made aware of it. It was also arranged that the Claimant could park in a layby near the offices in an emergency. Normally, this would incur a parking
violation
but security would be made aware of the Claimant's
vehicle
registration number so that this did not occur. However, the Claimant would be required to move the
vehicle
when she was able. Mr Atkinson considered that this was an achievement in that he thought he had obtained a concession that was a departure from normal practice. It did not appear that he had ever read the actual policies relating to the car park."
The Tribunal's Decision
"137. The big thing for the Claimant is car parking. Without considering the merits of the case, the Claimant declined to do the one thing that might have solved all of her problems - she failed to seek a blue badge having already held one. Her reasons for this were contradictory and confused. Obviously, this does not remove the need for the Respondent to provide reasonable adjustments but it does raise questions over the Claimant's motivation and what she was trying to achieve.
138. Full details were not made available but it was clear that the Claimant also faced problems outside work which caused her stress. These included changes in working hours to look after her father and the still born birth of her niece's baby. Given the apparent impact of stress on the Claimant, these matters must have been contributing factors in affecting her condition. Again, this does not detract from the Respondent's duties to the Claimant but it may assist in understanding her reactions.
139. The purpose of a reasonable adjustment is to put a disabled person in a similar position to that which he/she would have been in but for the disability.
140. The first live issue concerns the Respondent's alleged 'failure to provide a dedicated/reserved/disabled parking bay at Benton ParkView'.
The Claimant sets out
various
provisions, criteria and practices which she contends are relevant. In essence, she contends that she was required to attend work without being allowed access to a dedicated reserved parking space and being denied access to such a space. It is not in dispute that she was allowed access to the site in a
vehicle
and she was allowed to park on the site, if space was available.
141. It has to be accepted that the Respondent did not provide such a space. The question for the Tribunal was to decide whether the Claimant made a reasonable adjustment having regard to the Claimant's disability. The Claimant sought such a space because she alleged that her condition required that she had easy access to a toilet in an emergency situation on arrival at her place of work. She claimed that a dedicated parking bay would reduce her anxiety which exacerbated her condition. The Tribunal did not have the benefit of any medical evidence, other than the occupational health reports, which were based on information supplied by the Claimant. The Tribunal accepted that the Claimant might require access to a toilet when she entered the Respondent's site. She was allowed to park in any available space, wherever it was situated, which could be close to one of the buildings, all of which had toilets. She was also allowed to use one of the laybys, which were closer to the buildings and the toilets than the car parks. Although, she then had to move thevehicle,
she was allowed access to the essential user parking bays, where there were likely to be spaces. If she was accused of breaching parking regulations, management had undertaken to deal with this on her behalf.
142. The Claimant sought a dedicated parking place. The Tribunal was not satisfied that this was the only possible reasonable adjustment or that it was necessarily the best solution. In an emergency, the dedicated bay might not be in the best position - should it be near an entrance, if so, which one, should it be near the Claimant's office or should it just be near a building with a toilet? Accordingly, access to any parking space might actually be an advantage and this would be an option even with a dedicated space. Alternatively, parking in a layby might be helpful if this put the Claimant nearer a toilet. This was allowed by the Respondent. Support in dealing with any complaint about parkingviolations
was also available. Finally, the Claimant was allowed access to parking bays in the essential user parking area, which was at the Claimant's preferred entrance to the site.
143. The Respondent had clearly failed to comply with its own policy on parking space allocation. However, it was not argued and the Tribunal did not find that this was a contractual right. The rights under the policy were discretionary and could not be depended upon.
144. The Tribunal considered the evidence provided by the Claimant and finds that she established facts that supported her allegations in this regard. The Claimant was advised by occupational health that she should have a reserved parking space and one was not provided at Benton ParkView,
despite this being a breach of the Respondent's own policies. It follows from the above that there are facts from which the Tribunal could decide in the absence of any other explanation that the Respondent contravened the provision concerned so that the provisions of Section 136 of the EA do apply. However, the Tribunal finds that the Respondent did make a reasonable adjustment in the arrangements that it made for the Claimant at Benton Park
View.
It may not have been the best and it was not what the Claimant wanted but it was sufficient for the Respondent to discharge its obligations to the Claimant under the EA."
The Legal Framework
"20. Duty to make adjustments
(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.
(2) The duty comprises the following three requirements.
(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
.."
The grounds of appeal
(a) Ground 3: The Tribunal erred in law by holding that the Claimant could not depend on the Respondent's own parking policies because they were discretionary and not contractual in effect.
(b) Ground 2: The Tribunal erred in law and breached its duty to give reasons by failing to address the Claimant's case that providing a reserved parking space at Benton ParkView
would eliminate the stress caused to the Claimant for having to look for a parking space at work, which would be likely to aggravate her colitis symptoms.
(c) Ground 4: The Tribunal erred in law in that it applied the wrong test in determining whether the adjustment sought was reasonable by considering whether it was the "only possible" reasonable adjustment or if it was necessarily the best solution.
(d) Ground 1: The Tribunal's decision to dismiss the Claimant's claim in respect of reasonable adjustments was perverse in light of the evidence and other findings made by the Tribunal.
Ground 3 The failure to apply policy
Ground 3 Discussion
Ground 2 Error in failing to recognise that a reserved parking space would eliminate the stress caused by having to search for a parking space
Ground 2 Discussion
Ground 4 Application of the wrong test for reasonable adjustments
Ground 4 Discussion
Ground1 Perversity
Conclusion
Disposal