Key takeaways
No legal duty to make ineffective changes
Employers aren’t required to implement adjustments that won’t work.
Tribunal supports practical approach to adjustments
Changes must have a realistic chance of improving the situation.
Focus on adjustments that make a difference
Legal obligations apply only where outcomes are achievable.
Employers have a positive duty to make reasonable adjustments for a disabled worker where they have actual or deemed knowledge that they are disabled and that the disability causes the employee substantial disadvantages when compared to other staff. The EAT has recently considered it this duty extends to making adjustments that have no real prospect of succeeding.
The facts of the case before the EAT arose during the Covid-19 pandemic. H worked for an NHS Trust as an ambulance driver. He was assigned to non-emergency duties, meaning he was not required to respond to 999 calls. According with national guidance around the distribution of PPE, non-emergency drivers were given a FFP2 face mask. H was disabled by reason of having asthma, depression and anxiety and was initially required to shield at home. H’s anxiety around catching Covid-19 greatly increased whilst he was shielding and, when the time came to return to work, he objected to the grade of face mask non-emergency drivers were given. He requested a higher-grade FFP3 face mask to use when transporting patients with Covid-19, but did not commit to return to work if this was provided. The employer refused on the basis that the FFP3 mask would not resolve H’s anxiety anyway because it would not provide 100% protection from contracting Covid-19.
Following a long-term sickness absence, H was eventually dismissed and brought disability discrimination and unfair dismissal claims, both of which were dismissed by the employment tribunal. The tribunal held that H’s anxiety during the pandemic was so acute that there was no real prospect that providing him with a FFP3 face mask would succeed and allow him to return to work. H appealed.
The EAT dismissed H’s appeal and upheld the tribunal’s decision on both claims. In relation to the disability claim, the EAT held that the tribunal had been entitled to conclude that providing H with an FFP3 face mask would make no difference because H’s anxiety about contracting Covid-19 was so acute. Employers are not under a duty to make an adjustment which has no real prospect of succeeding. Further, the tribunal had not erred in its consideration of the fairness of H’s dismissal.
Hindmarch -v- North-East Ambulance NHS Foundation Trust [2025] EAT 87
