Does the duty to make reasonable adjustments extend to making adjustments to help an employee physically get to work?

In 1999 in Kenny v Hampshire Constabulary [1999] IRLR 76, the Employment Appeal Tribunal stated obiter that the duty to make reasonable adjustments is restricted to job related matters and that

“[t]he provision of transport for getting to and fro from the employers’ premises is outwith the section. If a disabled person needs assistance from another to get to work, that is for him/her to provide and pay for, but not the employer’s responsibility.”

However there have been various inconsistencies in the application of this duty since Kenny that suggests it is over prohibitive to assert that the issue of how an employee gets to work will never trigger the duty to make reasonable adjustments.

Firstly, the Equality and Human Rights Commission’s statutory Code on Employment notes that “[a]llowing the worker to work from home” is an example of a reasonable adjustment that can be made by an employer (para 6.33). Certainly, in many cases, working from home seems the logical adjustment to make for an employee who cannot physically get to work, thus implying the duty to make reasonable adjustments encompasses questions of how an employee gets to work.

Following on from this, the wording of the Equality Act 2010 states that there is a requirement to make reasonable adjustments where a person is put at a substantial disadvantage because of a “relevant matter” in comparison with persons who are not disabled (s20(3)). The “relevant matter” is defined in Schedule 8 paragraph 2(3) as something relating to “employment by the employer”. This wide interpretation does not preclude the question of how an employee gets to work or insert specific caveats as the EAT in Kenny did.

A wider interpretation of the requirement has also been demonstrated in subsequent cases such as Environment Agency v Donnelly [2014] EqLR 13 where a reasonable adjustment could have been made to allocate the disabled claimant a parking space closer to the office to aid her arrival at work.

Therefore, although clear guidance is yet to be issued on the dispute, it seems the duty to make reasonable adjustments can now extend to helping an employee physically get to work as a wider approach to what constitutes a “relevant matter” has been embraced by legislators and the courts.

P1100701Rachel O’Connell, Director & Solicitor at Just Employment Ltd

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