The EAT has upheld a Tribunal's decision that no adjustment could reasonably be made in respect of an employee who suffered a potentially life-threatening reaction to aerosol sprays and perfume.  It was not reasonable for the employer to provide a workplace free of such products.

Dyer v London Ambulance NHS Trust

Mrs. Dyer was employed by the London Ambulance NHS Trust (the "Trust")  to answer 999 calls in an extremely busy control room which was frequently visited by members of the public. After a number of years of employment, Mrs. Dyer developed a hyper-sensitive reaction to aerosol sprays and perfumes, akin to anaphylactic shock, resulting in increasingly serious incidents which led to her being hospitalised.  Following an occasion where she nearly died, she went on sick leave and did not return to work.

The Trust went to considerable lengths to understand what reasonable adjustments could be made for Mrs. Dyer, including consulting the leading UK expert in the field.  However, it ultimately concluded that no reasonable adjustments could be made, and dismissed Mrs. Dyer on capability grounds.

Mrs. Dyer brought claims for unfair dismissal and disability discrimination.  She argued that the Trust had a duty to make a reasonable adjustment to its provision, criterion or practice of allowing people to spray personal/cosmetic products in a communal working area.

The Employment Tribunal dismissed both claims.  It held that it was not reasonable for the Trust to implement and enforce an aerosol spray/perfume-free policy by way of a reasonable adjustment given that the Trust was a large employer and that many employees and visitors could be in the control room at any one time. It also considered that Mrs Dyer had been fairly dismissed taking into account the "extensive" examination and investigation that the Trust had carried out before dismissing her. Mrs. Dyer appealed to the EAT.

EAT Decision

The EAT dismissed the appeal in respect of both claims.

As regards the duty to make reasonable adjustments, the EAT held that the Tribunal had been entitled to conclude that no reasonable adjustment could be made on the facts of this case.

It noted that the Trust had previously alerted employees in the control room to Mrs. Dyer's condition but that that had not remedied the situation, and further incidents had occurred.  The EAT accepted that however stringently the Trust sought to implement and enforce an aerosol spray and perfume-free policy, there was a likelihood that someone would inadvertently breach it, and the consequences of such a mistake could be fatal for Mrs. Dyer.

Comment

As the EAT acknowledged, the facts of this case are extraordinary.  Whilst the practical approach taken by the Tribunal, and endorsed by the EAT, is helpful for employers, the EAT noted that it will be a relatively rare case in which no reasonable adjustment can be made. Indeed, the EAT recommended that Tribunals "think long and hard" before concluding that.

The decision also highlights the fact-specific nature of cases on reasonable adjustments and that what might be a reasonable adjustment for one employer may not be reasonable for another. In this case, the EAT accepted that no adjustments could reasonably be made given the size of the Trust's workforce and the nature of its business, including a busy working environment which was accessible to the general public. However, the EAT agreed with the Tribunal that that might not be the case for every employer, for example a small employer with a compact workforce.