This was the question considered in the case of Howorth v North Lancashire Teaching Primary Care Trust. Mrs Howorth was employed by the North Lancashire Primary Care NHS Trust as a health visitor. In December 2006, Mrs Howorth was diagnosed with depression, was prescribed anti-depressant medication and went on sick leave.

On 2 July 2008, Mrs Howorth went to a supermarket where she left without paying for her goods, forced her way from the store, and drove away after trapping one person, who attempted to restrain her, with her car door and with a shopper on her car bonnet. Mrs Howorth said she had no recollection of any of these incidents. Correspondence from her colleagues showed that this was entirely out of character, and the employment tribunal found that during the disciplinary process, the PCT accepted that her actions were involuntary and that the medical evidence supported a diagnosis of automatism.

On legal advice, Mrs Howorth pleaded guilty and was subsequently given a 12-month conditional discharge, although she was found guilty of theft, two counts of battery and one of dangerous driving. As a consequence of these convictions, she was disciplined and on 18 November 2009, she was summarily dismissed. She appealed her dismissal without success. The dismissal was the subject of her claim to the Employment Tribunal. The Employment Tribunal found that the PCT’’s failure to consider alternatives to dismissal was a failure to make reasonable adjustments. However at the remedy hearing, they also found that no adjustment could have succeeded in keeping Mrs Howorth in work. On appeal, the Employment Appeal Tribunal held that the Employment Tribunal had made an error of law, given that no adjustment could have succeeded, there could be no failure to make a reasonable adjustment.