Many employers will find themselves in a situation where adjustments are suggested by either Occupational Health or the employee directly.
Reasonable adjustments are changes an employer can make to remove or reduce an individual’s disadvantage which is related to their disability. These might include:-
- Making changes to the workplace
- Providing equipment
- Changing someone’s working arrangements (such as hours or start/finish times)
Sometimes, the adjustments recommended or requested are unworkable due to the practicalities or financial implications of implementing them. We have advised many employers regarding recommended adjustments and whether they are likely to be deemed “reasonable” with reference to the Equality Act 2010. Whether an adjustment is reasonable will depend on the following:-
- Whether the adjustment will remove or reduce the disadvantage to the disabled employee
- Whether it is practical and affordable to make
- If it will or could harm the health and safety of others
The Employment Appeal Tribunal (EAT) has recently heard the case of Hindmarch v North-East Ambulance NHS Foundation Trust, which looked at whether an employer is under a duty to make reasonable adjustments if they have no real prospect of succeeding.
In this case, Mr Hindmarch was a non-emergency ambulance driver working during the height of the COVID-19 pandemic. He was absent from work and refused to return to work unless his employer provided an FFP3 mask to alleviate his heightened anxiety about catching COVID -19. The employer had issued Mr Hindmarch with an FFP2 mask which was in line with national guidance at the time. It argued that an FFP3 mask would not offer Mr Hindmarch complete protection from catching COVID-19 and was therefore unlikely to reassure him given his extreme anxiety.
Critically, Mr Hindmarch did not state unequivocally that he would return if given an FFP3 mask. Ultimately, Mr Hindmarch was dismissed on capability grounds owing to his ill-health and long-term sickness absence. He subsequently brought claims for unfair dismissal and failure to make reasonable adjustments in the Employment Tribunal.
Mr Hindmarch’s claims failed, the Employment Tribunal finding that the employer did not fail to make reasonable adjustments in circumstances where there was no real prospect that providing the FFP3 mask would have enabled Mr Hindmarch to return to work.
Mr Hindmarch appealed to the EAT, who dismissed his appeal. It found that where there is no real prospect of an adjustment helping to avoid or reduce the disadvantage, then the employer is under no duty to make the adjustment.
This case really highlights the need to consult with employees about the impact that implementing an adjustment will have on reducing or removing the disadvantage to them. If, ultimately, the employee does not state it will make a difference, then this case suggests that the employer will not be duty bound to make the adjustment.
For more information on following a fair redundancy procedure, please contact a member of the Glaisyers ETL Employment team.
