UK: Disability Discrimination: Reasonable Adjustments

Authors: Frances Ross and Charlotte Stern

Although the facts in this case arise out of the very unique Covid landscape, the lessons can be drawn more broadly. Mr Hindmarch worked for the North-East Ambulance NHS Foundation Trust as a non-emergency ambulance driver. He was provided with FFP2 masks to protect him. Emergency ambulance drivers were provided with FFP3 masks (which offer slightly higher levels of aerosol protection levels) which would protect them when delivering first aid and resuscitation; something that Mr Hindmarch would not normally be required to carry out.

Mr Hindmarch suffered from extreme anxiety and a particular fear of catching Covid from patients. He asked for an FFP3 mask, but his employer refused based on reasons including: a) such a mask would not provide 100% protection; and b) Mr Hindmarch was unsure if he’d be able to return to work even if he was provided with an FFP3 mask.

Mr Hindmarch’s health deteriorated to the point that he was unable to return to work in any capacity. Eventually he was dismissed and Mr Hindmarch claimed both unfair dismissal and that his employer had failed to make reasonable adjustments for him by providing him with an FFP3 mask.

The Employment Tribunal accepted the Ambulance NHS Trust’s argument that, even if they had provided the FFP3 mask, Mr Hindmarch would not have been able to return to work because of the acute nature of his anxiety. The Employment Appeal Tribunal agreed, confirming that if the steps that it is suggested an employer should have taken by way of reasonable adjustment (whether in the form of the provision of an auxiliary aid or otherwise) would have no real chance of avoiding or reducing the disadvantage, then the employer is under no duty to take those steps.

Key Action Points for Human Resources and In-house Counsel

It’s reassuring for employers that they are not obliged to make adjustments that are not going to make a difference to the employee’s ability to work. However, judging how effective an adjustment will be at avoiding or reducing a disadvantage may be difficult in some cases. If in doubt, always take advice.