Is there an obligation for an employer to make reasonable adjustments where the adjustment may not remove the disadvantage faced by a disabled employee?
An employer’s obligation to make reasonable adjustments to support a disabled employee is set out in Section 20 of the Equality Act 2010. Section 21 explains that a failure to do so without just cause may amount to discrimination by the employer.
In Hindmarch v North East Ambulance NHS Foundation Trust (2025), Mr. Hindmarch (H) was employed as a non-emergency ambulance driver and suffered from anxiety and depression. With the onset of the COVID-19 pandemic, to alleviate his anxiety about catching COVID-19, he requested an FFP3 mask—typically reserved for emergency ambulance staff performing aerosol-generating procedures (AGPs). H’s employer declined his request for an FFP3 mask, stating it was unlikely to alleviate his concerns given the severity of his anxiety. Furthermore, H had never unequivocally stated that he would be able to return to work from his anxiety-related sickness, even if provided with the FFP3 mask. Instead, he was offered the standard FFP2 mask in line with national guidance for non-emergency staff.
There were also practical issues with H using FFP3 masks. These masks are designed to be regularly decontaminated, which would have been impractical after each encounter with a COVID-positive or coughing patient. The masks could not be used while driving—an integral part of H’s duties—as he was a single-person crew responsible for all driving. In addition, he wore glasses, which were likely to steam up while wearing an FFP3 mask.
As a result of his fear of catching COVID-19, H stopped attending work and was ultimately dismissed on the grounds of ill health following a prolonged period of absence. He brought a claim to the Employment Tribunal (ET) for unfair dismissal and failure to make reasonable adjustments, both of which were dismissed. H then appealed to the Employment Appeal Tribunal (EAT).
Taking into account the employer’s legitimate aims, such as service delivery and safety, and applying the proportionality test, the EAT rejected H’s appeal. It upheld the ET’s decision, holding that the tribunal had been right to conclude that the FFP3 mask requested by H would not have alleviated the disadvantage caused to him. It was reasonable to conclude that there was no real prospect of such an adjustment helping to avoid or reduce the disadvantage.
The ET applied the correct statutory test, consistent with the EHRC Code of Practice and earlier case law, such as the Supreme Court decision in Paulley v FirstGroup plc. In that case, the Court confirmed that where there is no real prospect that an adjustment will prevent or remove the disadvantage, the employer is not under a duty to make the adjustment.
The EAT’s decision reemphasises that employers are not required to make adjustments that have no real prospect of alleviating the disadvantage caused to a disabled employee. However, the threshold to justify this is set quite high—an adjustment does not have to be fully effective, only that there is a chance it might be. Employers must be able to justify, with evidence (such as medical or other relevant documentation), why an adjustment would have had no real prospect of success.
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