The Employment Appeal Tribunal (EAT) ruling in Dyer (‘D’) v London Ambulance NHS Trust (‘the Trust’) is a rare example of a case where no “reasonable adjustments” could be made to the workplace.
Under the Equality Act 2010, where a “provision, criterion or practice” (PCP) puts a disabled person at a substantial disadvantage compared to a person who is not disabled, then the person or organisation which operates this PCP is under a duty to take such steps as are reasonable to avoid the disadvantage – otherwise known as the “duty to make reasonable adjustments”.
In this case, D was employed by the Trust to deal with 999 calls in the Waterloo Control Room, the busiest such control room in the world. The building and control room were also frequented by members of the public. From 2006 to 2009, D suffered five severe reactions to aerosols/perfumes. All of these led to hospitalisation, with the final incident in March 2009 resulting in a near-death experience.
D went off work from March 2009 until June 2011, when she was dismissed by the Trust on the grounds of capability – although in reality this was to safeguard her health and safety. During this time the Trust had arranged for medical and occupational health reports, had considered and/or attempted several adjustments and had consulted the leading expert in the country on the subject, before finally deciding that no reasonable adjustment could be made.
D identified a PCP of allowing people to spray cosmetic products such as aerosols and perfumes in communal working areas and argued that the Trust should have made a reasonable adjustment to this PCP. She was unsuccessful on her internal appeal and subsequently on her claims of unfair dismissal and disability discrimination at the employment tribunal.
The EAT upheld the tribunal’s decision, agreeing that it was not reasonable or practicable to implement and enforce an aerosol and perfume free environment in this particular workplace, although it may have been possible with a different workforce or premises. It was particularly relevant that both oral and written warnings to employees regarding the use of aerosols and sprays had been made by the Trust, yet the incidents had continued to happen. This supported the tribunal’s view that no reasonable adjustment could be made – the disadvantage could not sufficiently be avoided. The strength of the employee’s desire to return to work did not affect this assessment.
The EAT also observed that employers should not too easily regard themselves as able to dismiss an employee who is disabled on grounds of capability, and should not certainly not do so if a reasonable adjustment can be made to enable the employee to continue working. Cases in which no reasonable adjustment can be made will be rare – this just happened to be one of those rare cases. Indeed the EAT described the facts of the case as extraordinary. This case is therefore a useful indicator of how unusual it will be for reasonable adjustments to be impossible.