UK Discrimination Law Review: Legal issues and obligations relating to disabled parking facilities both for employers and service providers - August 2012

• Discrimination law - HR e-briefs

24-08-2012

   

If your business occupies premises which provides car parking for visitors or customers then it will be subject to one or more overlapping duties under the Equality Act 2010 as an employer, a tenant and/or a service provider.

This explores some of the common queries/issues which arise in the context of making provision for disabled motorists to park. 

The number of parking spaces that must be allocated to disabled users?

There is no statutory requirement under the Equality Act 2010 to make provision for a certain number of disabled parking spaces either in a building in its construction or during the course of its subsequent use.

The key issues are likely to be:

1. the number of spaces;
2. their proximity to the building; and
3. policing their use. 

Spaces designated for disabled parking should be close to the building and there should be some means of policing the spaces/ensuring that non-disabled users are challenged if they park in them.
 
There is some guidance on what is expected:
 
The BSI British Standards, "Code of Practice for the design of buildings and their approaches to meet the needs of disabled people", recommends that commercial premises with designated off-street parking have one space for every employee who is a disabled motorist, plus 5% of the total capacity for visiting motorists and a further 4% should be enlarged standard spaces. 
 
There is no guidance as to how the BSI Standards would be applied in the context of the Equality Act but they are likely to be persuasive and a good reference point for a Court as to what is reasonable provision. Certainly it is good practice to work to those standards and there is a degree of risk in being found to be in breach of the Equality Act if your business does not.

Awareness of the current demand for such spaces amongst your employees and visitors, and a means to keep that demand under regular review, is important to ensure your duties under the Act are complied with.

There could of course be a situation where there is a need amongst the tenants for more disabled spaces than are currently available - this could be due to an increased number of disabled employees or based on some feedback/analysis of demand for more disabled parking from visitors.

Specific dimensions for spaces?

There are often concerns as to the dimensions of any parking spaces allotted to disabled drivers.

The spaces must be of sufficient size to be used by either employees, tenants or visitors to the car park who have mobility impairments. The spaces must be of a size and in a position which meets the needs of disabled users.

If there is feedback/complaints from employees, tenants or visitors to the car park then the party with control of the car park (most obviously either the owner, the Landlord if the car park is part of the common parts of an estate, or the tenant) would be required, as part of a continuing duty under the Act, to consider whether adjustments should be made to the size of the spaces.

The spaces have to be accessible otherwise the risk is that they could be found to be ineffective as an adjustment under the Act. 

The BSI British Standards Code again provides some guidance as to what is required - disabled access parking spaces should be 2400mm x 4800mm with a 1200mm wide marked access zone between spaces and a 1200mm wide safety zone for boot access.

As a starting point, spaces should meet those dimensions but must also consider whether any further changes should be made in response to any feedback from employees, tenants or visitors.

The duty to make reasonable adjustments

There are overlapping duties that may apply:

Service Providers

First, if a party provides facilities (or services) for the public or a section of the public (i.e. users of the office buildings and their visitors) then it will owe duties under the Act. The duty to make reasonable adjustments is a cornerstone of the Act and requires service providers to take positive steps to ensure that disabled people can access facilities and services. The duty is to make reasonable adjustments to avoid disabled people being placed at a "substantial disadvantage", compared to non-disabled people, when accessing the facilities or services.

The duty, in respect of reasonable adjustments, is a continuing and evolving one as better solutions may become available in the future. For this reason, it is never possible to say the business has "complied with" the Act. It needs to be an ongoing process of monitoring progress and encouraging continuous improvement.

Manager/Landlord Of Property

A party may, in some circumstances, have duties under the Equality Act 2010 as an owner/manager and landlord of the property to make reasonable adjustments.

Most obviously those duties can apply in relation to the common parts (which is likely to includes any car park) but only if they are common parts in residential/mixed use buildings.
 
Landlord Duties

As the Landlord of let premises, a party may have to make reasonable adjustments in response to a request from a disabled tenant or occupier of the building it lets. 

In the context of let premises, the duty to make reasonable adjustments extends only to two of the three requirements: to change how things are done and to provide an auxiliary aid. It does not extend to physical features of the premises or those of a benefit or facility, entitlement to which arises as a result of the letting - such as car parking.

The disabled person must be either the tenant or someone else who is entitled to occupy the premises. So it cannot be triggered by a visitor to the car park/building (but as above different duties can apply to visitors).
 
Employer

An employer can be liable to make reasonable adjustments under the Act to accommodate a disabled employee (or for example a candidate attending for interview or an agency worker) which includes provision of disabled parking facilities.  For example, it would be considered to be a reasonable adjustment to facilities for an employer to waive the normal policy that only senior managers have access to parking spaces in order to accommodate a disabled employee who required one of those spaces.  This in turn may require the adjustment to those spaces to ensure that they provide the necessary disabled access.
 
A Landlord should be aware of this in relation to any potential requests that may come from its tenants in order to comply with its own obligations under the Act. In addition, there will be duties on tenants themselves as employers under the Act, relating to the facilities including parking provision, they provide to their employees.

Summary

There is no express provision dealing with the provision of car parking spaces under the Equality Act 2010.

There is some guidance provided by the BSI Standards on dimensions/the number of spaces and how they should be allocated. These should be considered and adhered to as best practice.

There is a need to make reasonable provision for disabled motorists in terms of the number of spaces, position, policing the spaces and monitoring the use of those spaces to consider whether changes are required.