One of the more popular posts on the website is a 2015 post on whether a Taxi to Work can be a reasonable adjustment? It is not a very good post so unfortunate it is one of the more regularly visited ones. That 2015 post suggested that a very sad case 1998 case, Kenny v Hampshire Constabulary, which was decided under the previous Disability Discrimination Act 1995, remained authoritative for the position that it (providing a taxi to travel to work) is not.
In Kenny a job offer made to a candidate who had Cerebral Palsy was withdrawn upon learning the needs of the candidate. In short, the candidate needed personal support whilst at work not to perform the job itself but to attend to personal needs (for example, holding a bottle to allow the claimant to urinate). Because this was entirely outside the duties of the advertised job the EAT found that this did not engage duty to make adjustments – therefore questions of reasonableness were not in issue (had they been this would have been difficult as well) but the case was concerned with whether the duty was triggered by something that was not directly related to the advertised role in the first place.
The thinking of the original post was that the mode by which a worker attends a workplace is not a PCP of the role for Equality Act purposes. That is certainly true but on reflection I do not think that really resolves the issue. It is obviously not a PCP of the employer that a worker must travel to work by train, plane, or automobile but the simple requirement to work at a specific location is a potential PCP that could place a disabled person at a more than trivial disadvantage and, if it does, then that would engage the duty (and in that way distinguish it from Kenny), and it would then be an issue to establish whether the employer took all reasonable steps to remove that disadvantage (such as, for example, being unable to attend the workplace without being physically exhausted). In some cases, an employer providing a worker with a taxi to work may be such a reasonable step, along with other steps such as home working although, practically, it should not arise very often.
As mentioned previously for most disabled workers this is not an issue that will arise often. Except for workers employed by Central Government, the Access to Work Scheme expressly provides assistance to disabled persons and includes “steps to support you going in to … work” so workers can (hopefully) access this support without engaging in arguments with employers about the relevance of the considerations raised in Kenny.
For those workers, it is conceivable the cost of daily taxi fares would amount to an unreasonable step and so non-discriminatory – it would at least be a ground of resistance by the employer. The duty imposed upon an employer when a PCP places a disabled employee at a substantial disadvantage is “to take such steps as it is reasonable to have to take to avoid the disadvantage” (s.20(3) EA). I am not aware of this ever being applied but it does seem to me that it is conceivable that an employer could argue that it is not a “reasonable step” to pay for an adjustment if it is known that that same support can and will be made for the worker through the Access to Work Fund. In other words, it is not a reasonable step to require an employer to pay for adjustments when the State will do so, especially when that possibility was raised with a worker first.
The short answer therefore is that if a worker does find their ability to flourish in the workplace is impeded by disability and this will require financial outlay it is more prudent to first engage with Access to Work, either individually or with the employer.
The availability of Access to Work support for public transport costs of travelling to work is presumably the reason why there are few tribunal decisions on this. I have however found one recent case, Hillsey v Home Start Colchester (2020) but this concerned taxis for travel in work hours to appointments and not for initial travel to and from work. It is tangential to the post, but it is remarkable that the employee’s failure to buy (out of his own funds) alternative suitable transport was a subject of criticism by the tribunal – a criticism I think was entirely improper given the clear guidance in section 20(7) of the Equality Act (which does not allow employers to require employees to pay for adjustments).
Looking at the original post seven years later I think the statement that a taxi to work cannot be a reasonable adjustment was misstated, it is possible it could be if a specific PCP placed a worker at a disadvantage and the taxi had a prospect of removing that disadvantage.
However, if that scenario is applicable, I struggle to think of a case where a worker is not better served by seeking Access to Work support first where the employer will almost inevitably be more inclined to support the disabled worker (because the costs, or most of the costs, will not be paid by the employer). With the passage of the last few years, I sense that with the increase in remote working there would be more willingness to countenance a person’s working location as being a factor that engages the need for disability support.
For civil servants this is much more difficult and is a scenario I have encountered on a number of occasions. The theory behind the inability for most civil servants to a utilise Access to Work funding (they can still access the assessment support) is that irrespective of whether it is the DWP (as parent department of the ATW programme), or the individual department that is paying, it is always the government. Therefore, the government have given clear commitments, as set out in the linked guidance, that “If you’re a civil servant, your employer will provide support instead of Access to Work.”
However, despite that assurance where I have seen this situation arise the normal response by civil service employers, at least initially, is to decline to make the extra provisions of support that would otherwise have been provided through Access to Work. Thankfully, when the published guidance on the department’s responsibility to implement the same level of support as provided by Access to Work the resistance generally subsides.
One interesting possibility of challenge that I have previously raised and has generally prompted movement from employers is that the (civil service) employer’s refusal to countenance assistance with the costs of travelling to or from work amounts to potential discrimination arising from disability (DAFD)/indirect discrimination. In the case of DAFD the refusal is clearly unfavourable treatment (it doesn’t matter that it is not less favourable to how a non-disabled employee making the same request would be treated. I do not think the causation elements would be problematic (and this is not required in the Indirect discrimination context anyway). The assessment is whether the treatment is a proportionate means of achieving a legitimate aim. It has never been tested (as far as I am aware) but given civil service employers have been subject to the DWP commitment that Access to Work funding will be granted if it would otherwise be granted but for the employer’s status as a government employer, I think there is a good prospect that it would not be proportionate to refuse to be bound by that prior commitment. The other advantage of a discrimination arising from disability approach is also that any potential arguments relating to PCP’s are sidestepped since this is not a requirement in a discrimination arising from disability case.
If you’re an employee wanting Access to Work assistance then guidance on how this can be sought is available at Access to Work: get support if you have a disability or health condition: Apply for an Access to Work grant – GOV.UK (www.gov.uk)
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