Get in touch 0117 325 0526
Get in touch 0117 325 0526
Facts:
The employee was a non-emergency ambulance driver. He had a history of low mood and depression which amounted to a disability. His stress and anxiety increased with the impact of the Covid-19 pandemic, during which he was signed off work for a period. He then refused to return to work unless his NHS Trust employer provided him with an FFP3 mask (instead of the FFP2 masks which were given to non-emergency staff).
However, when the employer asked if and when he would be able to return to work (if given an FFP3 mask) the employee was unclear. The Trust therefore refused to provide an FFP3 mask on the basis of national guidance; the fact that the mask would not provide him with full protection; and that it would not address the underlying extreme anxiety he had relating to Covid-19.
The employee 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 dismissed the employee’s claim. It said the Trust did not fail to make reasonable adjustments or unfairly dismiss the Claimant. The Tribunal explained that the duty to make reasonable adjustments only arises if it would have a real prospect of removing the disadvantage.
In this case, the Tribunal was not satisfied that the employee would have returned to (or remained at) work if he had been provided with an FFP3 mask. It would not have provided him with complete protection against catching Covid-19 and could not be used for a full shift or for extended periods of driving. The employee’s anxiety was so severe that even with the mask, he was unlikely to resume his duties.
The employee appealed.
EAT decision
The EAT dismissed the employee’s appeal. It agreed with the Tribunal that the FFP3 mask would not have reduced the disadvantage caused to the employee.
The EAT confirmed that if there is no real prospect of an adjustment helping to avoid or reduce the disadvantage, an employer is under no duty to make it. This is supported by previous case law as well as being consistent with the Equality and Human Rights Commission (EHRC) Code of Practice.
Implications:
To succeed in a disability discrimination or unfair dismissal claim – based on a failure to make reasonable adjustments – the employee must show that there is at least a real prospect that the adjustment(s) would have made a difference. This is consistent with previous cases and the EHRC’s Code of Practice.
We recommend that employers engage with the employee, their medical advisor and/or occupational health 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, any employer refusing to make an adjustment for this reason should ensure that they clearly explain the evidence behind their decision and keep records of how they reach their decision.
5.0/5