Transcription

• Speaker #0

  Today, in the Lefebvre HR and Employment Law podcast, we're discussing the judgment in the case of Hindmarch and North East Ambulance NHS Foundation Trust, in which the Employment Appeal Tribunal was asked to determine whether an employer has a duty to make adjustments which have no reasonable prospect of succeeding. In this case, a non-emergency ambulance driver bought a claim against the trust he worked for. During the COVID-19 pandemic, following national guidance around the supply of personal protective equipment Ambulance drivers in his category were provided with an FFP2 protective face mask. The driver suffered from asthma, depression and anxiety, and the pandemic greatly exacerbated his anxiety, and he was very worried about contracting COVID-19. Having initially been required to shield at home, when the time came to return to duties, the driver refused to return to work and requested that he be provided with a higher grade FFP3 face mask, when he was required to transport patients with COVID-19. The employer refused to provide the driver with an FFP3 mask on the basis that a. the National Guidance required an FFP2 mask and b. the requested FFP3 mask would still not provide the driver with 100% protection from COVID-19 and therefore complying with his request was unlikely to ease his concerns. The driver at no point confirmed he would return to work if given an FFP3 mask. and had expressed uncertainty about his willingness to do so because of his extreme anxiety. After a period of long-term sickness absence, the driver was dismissed on the grounds of incapability. He brought disability discrimination and unfair dismissal claims, both of which were dismissed by the Employment Tribunal. In relation to the failure to make reasonable adjustments claim, the Tribunal held that the employer had not failed to make reasonable adjustments when it declined to provide the driver with a FP3 mask. because his anxiety about catching COVID-19 was so acute that even if he had been given the requested FP3 mask, there was no real prospect of this adjustment succeeding, nor of him returning to work. The Employment Appeal Tribunal dismissed the driver's subsequent appeal and upheld the Tribunal's decision. If there is no real prospect of an adjustment helping to resolve or mitigate the substantial disadvantage the disability causes, then the employer is not under a duty to make the adjustment. This is supported by previous case law and the Equality Code. The Tribunal had been entitled to conclude that, due to the driver's extreme anxiety, providing him with a FFP3 mask would not have made any difference. The Tribunal had also correctly considered the fairness of the dismissal when it dismissed his unfair dismissal claim. Although the Employment Appeal Tribunal has confirmed that there is no duty to make an adjustment which has no real prospect of success, employers should regard this test as having a very high bar. In practical terms, if there is any prospect of the requested adjustment working, tribunals will usually expect the employer to make the adjustment unless there are very good reasons that it is not reasonable to do so. Look out for further episodes in this series to stay up to date on all things HR and employment law related.