Author
Author
Background
The Claimant was a non-emergency ambulance driver. He was disabled, with a history of low mood and depression, and his stress and anxiety became enhanced by the impact of the COVID-19 pandemic. During the pandemic, the Claimant was signed off work for a period and refused to return to work unless the Trust provided him with an FFP3 mask (instead of the FFP2 masks which were given to non-emergency staff). When asked whether, and if so when, he would be able to return to work if given an FFP3 mask, the Claimant was equivocal in his response. The Trust refused to provide an FFP3 mask on the basis of national guidance and the fact that the mask would not provide him with full protection, nor would it address the underlying extreme anxiety he had relating to COVID-19.
The Claimant was dismissed on grounds of capability due to ill health. He brought claims including unfair dismissal and failure to make reasonable adjustments.
Tribunal decision
The Tribunal found that the Trust did not fail to make reasonable adjustments, nor did it unfairly dismiss the Claimant. The Tribunal explained that the duty to make reasonable adjustments or provide an auxiliary aid would only arise if the adjustment or auxiliary aid would have a real prospect of removing the disadvantage. In this case, the Tribunal was not satisfied that, were the Claimant to have been provided with an FFP3 mask, there was a realistic chance that he would have returned to work to such an extent that he would not have been dismissed.
The Claimant appealed to the Employment Appeal Tribunal (EAT).
EAT decision
The EAT dismissed the appeal and held that the Tribunal was entitled to find that there had been no failure to make reasonable adjustments: if there is no real prospect of an adjustment helping to avoid or reduce the disadvantage, then the employer is under no duty to make it.
The EAT also rejected the argument that the Tribunal had assumed that because the Claimant’s claims of disability discrimination had been dismissed, it necessarily followed that the claim for unfair dismissal would also fail. The EAT said the reality was that the claims for disability discrimination and unfair dismissal stood or fell on the outcome of the argument that the Trust was unreasonable in failing to provide the Claimant with an FFP3 mask.
Implications
The EAT judgment is clear that it cannot be reasonable to require an employer to make an adjustment that has no prospect of achieving the desired effect. For such a claim to succeed, it must be shown that there would have been at least a real prospect that the adjustment would have made a difference. This is consistent with previous cases and the EHRC’s Code of Practice.
Employers should engage with occupational health and the employee to understand the disadvantage suffered and what adjustments could be put in place to realistically avoid those disadvantages. If there is no real prospect that suggested adjustments will help remove or reduce the disadvantages, there is no duty on an employer to make them. However, an employer refusing to make an adjustment for this reason should ensure that they clearly explain the evidence behind their decision and documents their rationale.
To discuss any of the issues raised in this article, please contact Lynsey Blyth.