The Employment Appeal Tribunal ("EAT") has recently concluded that an employer’s decision not to provide a car parking space amounted to disability discrimination.
In the above case, an employee suffered from medical conditions that affected her knees, spine and hip. As a result, she brought Tribunal claims which included one of disability discrimination whereby she alleged that her employer had failed to make reasonable adjustments to her workplace by not providing her with a parking space in their main car park.
Prior to her claim the employee worked flexi-time and chose to arrive at work at 9:30 am. When the employee normally turned up to work, her office’s main car park was full. Although there was an overspill car park it was a short walk to the office and over uneven surfaces. The employer’s position was that if the employee came into work earlier at 9.00 a.m. then she would be able to find a car parking space in the main car park.
A Tribunal held that the need to walk the distance from the overspill car park to the office was a provision criterion or practice ("PCP") that significantly disadvantaged the disabled employee. Therefore, the employer had failed in its duty to make reasonable adjustments by not allocating her a parking space in the main car park (irrespective of her decision to arrive to work at 9.30 a.m.).
When the employer challenged this decision, the EAT rejected its arguments. It made a finding that the Tribunal had identified the PCP correctly and whilst the employee had the right and, indeed, was able to come into work at any time within the flexitime arrangements, it was not for her to make reasonable adjustments - the duty is on the employer, particularly when the organisation had given her no explanation as to what prevented them from allocating her a parking space in a large main car park.
This case confirms that where the duty to make reasonable adjustments arises, employers cannot put the burden on the employee to deal with the substantial disadvantage which he or she faces. The duty is on the employer to take steps and action. If the adjustment cannot be made, it is for the employer to show why it is not reasonable to do so. In this case providing a car parking space in the main car park was a reasonable adjustment. It was not enough for the employer to decide that the employee could avoid her parking problems by coming into work earlier.
This case was also a reminder that a Tribunal will look at whether the employer thought about all adjustments that can be reasonably made to accommodate a disabled employee taking into account the size and resources of the business. Here it was decided that whilst the provision of a car parking space might not be something most employers could provide, given this particular employer’s available resources and spaces available, the provision of a car parking space was a reasonable thing to offer in the circumstances.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.