In The Environment Agency v Donnelly, Donnelly has osteoarthritis of the knees and spondylitis, which affects her back and her hip. She claimed that her employer had failed to make reasonable adjustments to the workplace. Donnelly was entitled to work flexitime hours. She chose to arrive at work, as she was entitled to do, at 9.30; but by that time, the principal car park was full. This meant walking some distance from her vehicle in the overspill car park to the office, sometimes in poor weather conditions and possibly on uneven surfaces. The Agency did not allocate Donnelly a specific space in the main car park; it suggested that she come to work at 9.00 to overcome the problem, which she was could do, albeit she would have to take her medication earlier to give time for it to have effect.

The Employment Tribunal (ET) decided that to walk a distance from Donnelly’s car to the office, often in difficult conditions, was a provision criterion or practice (PCP) that significantly disadvantaged her as a disabled person and the employer had failed in its duty to make reasonable adjustments by not allocating her a parking space near to the office entrance. The EAT agreed. The ET had identified the PCP correctly and while Donnelley 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 no explanation had been given of what difficulty it caused the Agency to allocate her a parking space in a large main car park.

Where the duty to make a reasonable adjustment arises, this case highlights that employers cannot attempt to put the responsibility on the employee to deal with the substantial disadvantage which he or she faces. The duty is on the employer to take action, and if an adjustment cannot be made, show why it is not reasonable to do so, observing the factors that can be taken into account in Paragraph 6.28 of the EHRC Employment Code.