In this case, the EAT held that an employer had not failed to make reasonable adjustments when it refused to provide a particular kind of face mask to an employee who had extreme anxiety about contracting Covid, where there was no real prospect that provision of the mask would have enabled the employee to return to work.
Facts
North East Ambulance NHS Foundation Trust (the Trust) employed the Claimant as a non-emergency ambulance driver to provide scheduled transport to transfer patients between hospitals, or to and from their homes. He was very occasionally required to provide emergency transport.
The Claimant suffered from depression and anxiety. He was also asthmatic and fell within the category of people who were advised to "shield" during the early stages of the pandemic in 2020. The pandemic exacerbated the Claimant's existing anxiety and he was extremely worried about contracting Covid.
Having shielded for several months, the Claimant returned to work on 3 August 2020. However, after a period working on non-driving duties he went off sick in May 2021, saying that he could not contemplate returning to ambulance driving unless the Trust provided him with a FFP3 face mask to use when he was transporting patients who had tested positive for Covid. This is a more robust type of face mask than the FFP2 surgical face mask that was provided to non-emergency ambulance drivers.
The Trust refused to provide the Claimant with a FFP3 mask. Given that he only intended to wear the mask when transporting patients who had tested positive, the Trust did not consider that it would offer complete protection – as he might come into contact with infected patients who had not tested positive and displayed no symptoms. The Trust therefore did not believe that providing the mask would assuage the Claimant's concerns about returning to work; he had also never stated unequivocally that he would return if he were given a FFP3 mask. When asked at a sickness absence review meeting in June 2021 whether he would be able to return to work if a FFP3 mask was provided, the Claimant responded that he was unsure, but he did wish to come back when he felt able to do so.
Other reasons contributing to the Trust's refusal to provide the FFP3 mask were that: FFP3 masks could not be used whilst driving, they had to be decontaminated regularly, they could cause the wearer's glasses to steam up, they may not be fully effective when worn by someone who had a beard (as the Claimant did), and the applicable national guidance was that the FFP2 surgical mask was sufficient protection for non-emergency drivers.
The Claimant's grievance about the Trust's refusal to provide the FFP3 mask was rejected. Around the time his grievance appeal was dismissed in late May 2022, occupational health (OH) reported that the Claimant was not fit to return to his role, or to any alternative role, and no timescale could be set for his recovery. Sickness absence review meetings were held at regular intervals by telephone, with further input from OH, and the Claimant was eventually dismissed on 21 September 2022 on the ground of ill-health. His appeal against dismissal – on the basis that he would not have been in this position if the Trust had provided a FFP3 mask when he had first requested one – was rejected in November 2022.
An employment tribunal dismissed the Claimant's claim that the Trust's refusal to provide a FFP3 mask constituted a failure to make reasonable adjustments. The tribunal found that providing the Claimant with a FFP3 mask would not have created a realistic chance of him returning to work and, as such, it would not be effective in removing or reducing the disadvantage he was experiencing as a result of his disability. The tribunal also dismissed the Claimant's claims that his dismissal was unfair and amounted to discrimination arising from disability.
The EAT rejected the Claimant's appeal, holding that the tribunal had been entitled to conclude that, due to his extreme fear of catching Covid, there was no realistic possibility that he could have come back to work and carried on as an ambulance driver, even if he was given a FFP3 mask. This was the case not just at the point of dismissal, but throughout the period to which the claim related. Indeed, as early as June 2021, the Claimant had said that he was unsure whether he could return to work if provided with a FFP3 mask. There was therefore no failure to make reasonable adjustments. The EAT also upheld the tribunal's decision that the dismissal was fair.
What does this mean for employers?
While the facts of this case are particular to the pandemic, the EAT's decision is a helpful illustration of the principle that there will be no failure to make reasonable adjustments if the adjustment in question would have no realistic prospect of removing or reducing the disadvantage the employee faces as a result of their disability. This is also reflected in the Equality and Human Rights Commission's Employment Statutory Code of Practice.
