No duty to make adjustments without a realistic prospect of success
The EAT has confirmed that employers are not required to make adjustments that are unlikely to overcome the disadvantage experienced by a disabled employee.
Background
Under the Equality Act 2010, employers must make reasonable adjustments where a provision, criterion or practice, or the absence of an auxiliary aid, places a disabled employee at a substantial disadvantage compared to those who are not disabled. However, that duty only applies where the proposed step has a real prospect of reducing or removing the disadvantage.
In Hindmarch v North-East Ambulance NHS Foundation Trust, the claimant was a non-emergency ambulance driver who suffered from anxiety, which was significantly exacerbated by fears about catching COVID-19. He refused to return to work unless issued with an FFP3 mask, typically reserved for higher-risk settings, rather than the FFP2 mask provided to staff in his role.
The Trust declined his request, explaining that national guidance did not support the use of FFP3 masks for non-emergency roles and that such masks would not offer complete protection. It also took the view that, given the severity of the claimant’s anxiety, the mask would not have alleviated his concerns. The claimant remained on long-term sickness absence and was eventually dismissed on the grounds of ill health. He brought claims for failure to make reasonable adjustments and unfair dismissal.
EAT decision
The Employment Appeal Tribunal upheld the tribunal’s decision to dismiss both claims.
It confirmed that the duty to make reasonable adjustments does not arise where there is no realistic chance that the adjustment would address the disadvantage. In this case, the tribunal had carefully considered whether the provision of a FFP3 mask might enable the claimant to return to work, but concluded that it would not. The claimant had not stated unequivocally that he would be able to return if given the mask, and the medical and factual evidence suggested that his anxiety was too severe to be overcome by that adjustment alone.
The EAT rejected the argument that the tribunal had applied the wrong legal test or conflated different parts of the Equality Act. It also found that the unfair dismissal claim had been properly considered as a separate question. The tribunal had assessed the employer’s efforts to support the claimant and found that the dismissal, while regrettable, was fair and proportionate.
Learning points for employers
This case highlights that the duty to make reasonable adjustments only arises where the proposed adjustment has a realistic prospect of mitigating the disadvantage. Employers are not required to make adjustments that would be ineffective in practice.
Nonetheless, employers should take requests seriously, particularly where they relate to mental health, and consider whether the proposed step might assist. Where an adjustment is declined, clear evidence should be retained explaining why it would not be effective, including where appropriate advice from occupational health or relevant professionals. As always, decisions should be based on the facts of the individual case and should be documented with care.