| 
No duty to make an adjustment if it would not remove the disadvantage
Under the Equality Act 2010, employers have a legal duty to make reasonable adjustments for disabled employees. These adjustments aim to remove or reduce disadvantages caused by a disability, and can include changes to the workplace, providing assistive equipment, or adapting how tasks are carried out. The goal is to enable disabled employees to access, stay in, and thrive in work.
An employer must consider adjustments where:
- They know, or ought reasonably to know, an employee has a disability;
- The employee is experiencing difficulties related to their disability;
- A disabled employee or applicant requests support; or
- Disability-related absence or delay in returning to work suggests disadvantage.
But the law also recognises limits. If the proposed change won’t remove the disadvantage, it may not be a ‘reasonable’ adjustment at all.
This was underlined in the recent case of Hindmarch v North East Ambulance NHS Foundation Trust. Mr Hindmarch, a non-emergency ambulance driver, had severe anxiety – accepted as a disability. During the COVID-19 pandemic, he was too anxious to attend work due to concerns about catching the virus. Emergency staff were issued high-grade FFP3 masks, while he was given an FFP2 mask. He argued that an FFP3 mask would have helped him to return to work. When he was later dismissed, he brought claims for unfair dismissal and failure to make reasonable adjustments.
The Employment Appeal Tribunal rejected his claim. The Trust were under a duty to take such steps as it was reasonable to have to take to avoid the disadvantage faced by Mr Hindmarch (his inability to attend work). However, on the evidence, there was no chance that the provision of an FFP3 mask would have removed the disadvantage (i.e. enabled him to return from sick leave). Given there was no chance of the adjustment helping to avoid the disadvantage, it was not reasonable to expect the Trust to make it.
Key takeaway for HR: Reasonable adjustments must be tailored, realistic, and likely to make a difference. Where they won’t remove or reduce the disadvantage, employers are not required to make them.