This is a question that is only ever likely to be asked of employees of central government departments. In most circumstances a disabled employee who is unable to travel to work by their own means (for example, by driving or using public transport) may obtain assistance through the Access to Work scheme which provides fares to work assistance. It is only employees of central government departments who are, as a matter of policy, excluded from that assistance and therefore, any assistance would need to come from the employer.
Unfortunately, the legal question of whether an employee should be given assistance to travel to and from work is less helpful. In Kenny v Hampshire Constabulary, a case concerning the Disability Discrimination Act 1995, the extent of which activities related to employment are “arrangements made by or on behalf of the employer” that engage a duty to make reasonable adjustments (in 2004 the DDA was amended to make reference instead to a provision, criterion or practice applied by or on behalf of the employer”.
Kenny is a sad case in which the claimant, who had cerebral palsy exhibited notable tenacity in refusing to accept Access to Work recommendations that he was unable to work and sought employment himself. He was successful in his application but when the full nature of the adjustments required were known, such as needing assistance to go to the toilet, the employer withdrew the job offer. The question for the EAT was were the domestic needs of Mr Kenny an arrangement made by or on behalf of the employer. The EAT dispatched with this issue quickly in finding that the arrangement must be ‘job related’:
The first question that arises is whether the arrangements which were necessary to enable the applicant to work with the respondents fall within section 6. We have come to the conclusion that they do not. Broadly, we accept the submission on behalf of the respondents on the cross appeal. In the first place, we consider that Ms Moor’s submission amounts to a contention that every arrangement which could be made to facilitate the disabled person’s employment falls within the definition in section 6(2). Yet, as it seems to us, a line must be drawn somewhere otherwise the statute would have been drafted differently. Subsection (2), as the word “only” foreshadows, is not intended to cover everything an employer could do. For example, the provision of transport for getting to an 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 employers’ responsibility. The effect of a failure to provide this service may deprive the disabled person of an opportunity to be employed in an undertaking, but without involving a breach of the Act. Therefore, the fact that the failure to make an arrangement will have this effect does not, of itself, bring the arrangement within the Act. In other words, not every failure to make an arrangement which deprives an employee of a chance to be employed is unlawful. It is to section 6(2) that one must turn for a definition of what is covered. It seems to us that in the context of the language used, namely “any term condition or other arrangement on which employment promotion a transfer or any other benefit is offered or afforded”, Parliament had in mind what might be called ‘job related’ matters. In other words, Parliament is directing employers to make adjustments to the way the job is structured and organised so as to accommodate those who cannot fit into existing arrangements.
It seems clear then that under the DDA at least a refusal to provide transport to and from work will not be a ‘job related’ arrangement and therefore not be a reasonable adjustment. Only where the employer does more generally provide transport to work, which does sometimes happen, would this be a arrangement of the employer that would possibly engage the duty to make adjustments for a more individual approach to work.
In conversation with other reps one question that reps have asked is how on this basis the allocation of a reserved car parking space can be found to be a reasonable adjustment since this is also clearly not about the job itself but traveling to and from work. The case of The Environment Agency v Donnelly is a case in point. In Donnelly the employer offered car parking to all staff in two different car parks. It is therefore an arrangement made by the employer such that where that arrangement placed a disabled person at a substantial disadvantage there was a duty to make reasonable adjustments imposed. Were an employer not to offer any car parking spaces for use by employees then there would not be a arrangement of the employer that could place disabled employees at a substantial disadvantage.
But what of the situation under the Equality Act 2010?
Section 20 of the Equality Act supersedes Section 6 of the DDA to set out the circumstances in which a duty to make adjustments arises. The main focus on when a duty to make adjustments arises in the Equality Act remains essentially the same as was the case under the DDA: the employer must impose “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”.
I can see no basis under the current legislative drafting why the principle in Kenny that an adjustment must be job-related and a PCP of the employer would not be applied in an Equality Act context. I have heard it said that the addition of section 20(5) of the Equality Act which relates to auxiliary aids may change the position. An Auxiliary Aid is defined in the EHRC Employment Practices Code (6.13) as being “something which provides support or assistance to a disabled person. It can include provision of a specialist piece of equipment such as an adapted keyboard or text to speech software. Auxiliary aids include auxiliary services; for example, provision of a sign language interpreter or a support worker for a disabled worker.”
Whilst I am not aware this issue has been adjudicated upon (if I’m wrong comments are very welcome) given the definition of “relevant matter” in schedule 8 of the Act I cannot see that a tribunal would be likely to take a different approach and the EHRC Code does not advance this (the language of the Code itself reflects the earlier Code alluded to in Kenny).
Does that mean there is no legal recourse to an employee? Were an employee to in principle qualify for Access to Work’s fares to work scheme but in practice not qualify because of their employment in a central government department then it does strike there is a prospect that they may have a claim that the employer’s failure to pay for their transport represents unfavourable treatment arising from disability. Because of the Government’s public commitment when removing DWP funding for Access to Work adjustments that there would be no loss in the level of support offered then it could be argued that the actual deterioration in support offered is not a proportionate means of achieving a legitimate aim.
Cases Cited:
Kenny v Hampshire Constabulary [1998] UKEAT 267_98_1410
The Environment Agency v Donnelly [2013] UKEAT 0194_13_1810
Employment Writes 