K Hindmarch v North-East Ambulance NHS Foundation Trust [2025] EAT 87

[2025] EAT 87Case No EA-2024-000231-OO
EMPLOYMENT APPEAL TRIBUNAL
Venue Rolls Building, Fetter Lane, London, EC4A 1NLDate 16 June 2025
Before
THE HONOURABLE MR JUSTICE CAVANAGH
Between
MR K HINDMARCHAppellant- and –
Between
NORTH-EAST AMBULANCE NHS FOUNDATION TRUSTRespondent
Gus Baker (instructed by Ronald Fletcher Baker LLP) for AppellantAndrew Webster (instructed by DAC Beachcroft) for RespondentHearing Hearing date: 6 June 2025
JUDGMENT
[1]In this judgment, I will refer to the Appellant as “the Claimant” and to the Respondent as “the Respondent”.[2]This is an appeal against the judgment of the Employment Tribunal (“the ET”), sitting at Newcastle (Employment Judge Johnson, Mrs D Winter, and Mr D Chapman), entered in the Register and sent to the parties on 23 January 2024, dismissing the Claimant’s complaints of unfair dismissal and of unlawful disability discrimination consisting of the Respondent’s failure to make reasonable adjustments, contrary to sections 20-21 of the Equality Act 2010 (“the 2010 Act”). The ET also dismissed the Claimant’s complaint of unlawful disability discrimination consisting of unlawful treatment because of something arising in consequence of disability, contrary to section 15 of the 2010 Act, but this ruling has not been appealed.[3]The Claimant was employed by the Respondent as an Ambulance Care Assistant. He was an ambulance driver. The Claimant’s role required him to provide scheduled care to patients, collecting them from hospital wards in order to transfer them to another hospital or to their home, or to transport patients from their homes to medical appointments. He was not, therefore, an emergency (or “non-scheduled”) ambulance driver. On rare occasions, however, the Claimant was required to carry out unscheduled work, during which he would visit patients at home and transport them to a hospital Accident and Emergency Department.[4]As the ET said at paragraph 5 of its judgment, it was accepted by the Claimant and the Respondent that the main issue in the case was the Respondent’s alleged failure/refusal to provide the Claimant with a type of face mask known as a FFP3 face mask, and thus all of the claims revolved around this issue.[5]The Claimant suffered from poor mental health, including depression and anxiety, and the pandemic greatly exacerbated the Claimant’s anxiety. He was very worried about contracting Covid. The Claimant has an underlying asthmatic condition and fell within the definition of those who had to “shield” during the early stages of the Covid pandemic in 2020. He also had a granddaughter in his family “bubble” whom he was very anxious to protect from the virus.[6]The Claimant shielded between 7 April 2020 and 2 August 2020. He returned to work on 3 August 2020. For a period the Claimant worked in the stores, but he then went off sick again. He made clear that he was not prepared to contemplate a return to ambulance driving unless he was provided with a FFP3 face mask, rather than a FFP2 face mask, to use when he was driving patients who had tested positive for Covid. The FFP2 mask is equivalent to a surgical face mask, and is designed to provide protection against coughs and sneezing which produce particles from a person’s respiratory tract. The FFP3 is a more robust mask which is designed to provide protection for those who carry out Aerosol Generating Procedures (“AGPs”), which generate droplets produced from the lungs. AGPs include first aid and resuscitation techniques, which emergency ambulance workers would be expected to carry out on a regular basis, but which scheduled drivers would not normally be required to carry out.[7]At the material time, National Guidance had been issued to Hospital Trusts about the supply of FFP2 and FFP3 masks to staff. This Guidance stated that FFP3 masks should be issued to emergency ambulance staff, because they were likely to encounter AGPs, but that the masks should only be worn whilst the AGPs were taking place. The Guidance stated that FFP2 masks, rather than FFP3 masks, should be issued to scheduled ambulance staff, who would not be engaged in AGPs.[8]There were two key, and connected, reasons why the Respondent said it had decided not to provide the Claimant with a FFP3 mask. The first was because the Respondent took the view that complying with the Claimant’s request to be permitted to use a FFP3 mask, when transporting patients who had tested positive for Covid, would not provide the Claimant with complete protection from the risk of catching Covid. For reasons that will be explained, the FFP3 mask might not be fully effective. In any event, the Claimant’s intention was only to wear the FFP3 mask when transporting Covid-positive patients, and there could be no guarantee that he would not come into contact with infected patients when he was transporting patients who had not tested positive for the virus. Patients who had not tested positive, and who displayed no symptoms, might nevertheless have Covid. The second reason was that, given that a FFP3 mask would not provide 100% protection from Covid, the Respondent did not consider that provision of such a mask would assuage the Claimant’s concerns, especially as the Claimant did not, at any stage, state unequivocally that he would be able to return to work as an ambulance driver if he were to be given a FFP3 mask. These reasons were explained to the Claimant.[9]There were other considerations which contributed to the Respondent’s decision not to provide the Claimant with an FFP3 mask, and which were explained to him. The Respondent considered that, as the National Guidance did not provide for FFP3 masks to be issued to drivers who carried out the type of work carried out by the Claimant, he should not be given such a mask, but should be issued with a FFP2 mask. The Respondent took the view that the mask might not be fully effective, as it may not fully cover the mouth or nose, or may be used or re-used too frequently. In any event, such masks could only be used for short periods, for up to three hours at a time, not for the whole (or even the majority) of the Appellant’s shift. If the mask became damp, it would need to be changed more often than every three hours. Moreover, FFP3 masks were designed to be regularly decontaminated, and it would be impractical to decontaminate the Claimant’s mask after each encounter with a Covid-positive patient, or with a patient who was coughing excessively. Furthermore, the masks could not be used whilst driving, and it was an integral part of his duties that the Claimant would drive the patients from place to place. Unlike those who carried out emergency work, the Claimant was a single-person crew and so did all the driving. Also, the Claimant wore glasses and these would steam up whilst a FFP3 mask was being worn, and the Claimant had a beard, which might impede the efficiency of the mask’s seal.[10]I should add that it was common ground between the parties that money was not a consideration in the decision to decline to provide the Appellant with an FFP3 mask, and nor was availability: at all material times, the Respondent had a stock of FFP3 masks.[11]The position taken by the Claimant in his discussions with the Respondent was that the Respondent’s concern that the provision of a FFP3 mask would not provide him with complete protection from the risk of catching Covid missed the point. The Claimant’s difficulty with returning to work stemmed from his extreme anxiety. The provision of a FFP3 mask would manage his anxiety and so would improve his psychological well-being. In this way, it would enable him to go back to work, whether or not it provided absolute protection from Covid. The Claimant did not, at any stage, state unequivocally that he was sure that he could return to work if given an FFP3 mask. The sequence of events[12]There is no challenge to the findings of fact made by the ET. The ET heard evidence from the Claimant and a former colleague, and from six witnesses for the Respondent. The ET had before it a bundle of documents running to over 1000 pages. The following summary of the sequence of events is derived from the much more detailed findings of fact at paragraphs 8-51 of the ET’s judgment.[13]As I have said, the Claimant returned to work after shielding in August 2020. He raised concerns about transporting Covid-positive patients. For the period between 3 August 2020 and 15 November 2020, the Claimant was not asked to transport any patient who was known to be Covid positive. The first time he was asked to do so was on 15 November 2020. He refused to do so. The Respondent accepted the Claimant’s refusal, and the Claimant was given alternative work in the Respondent’s stores department. The Claimant continued to work in the stores (apart from a period of absence caused by a chest infection) until 25 April 2021, when he began a phased return to his substantive driving role. On 14 May 2021, the Claimant was asked to transport a Covid-positive patient from hospital to the patient’s home. The Claimant had a panic attack. He declined to do so and went home. In his statement, he said that he did not think that the FFP2 mask that he had been given was sufficient, and that this had led to a mental health incident.[14]The Claimant did not return to work at any time after 14 May 2021. On the same day he referred himself to the Respondent’s Occupational Health Department, and obtained a fit note from his GP, saying that he was unfit from work for four weeks.[15]The Claimant was referred to Occupational Health and was made subject to a long term sickness absence review in accordance with the Respondent’s procedures. At a review meeting on 8 June 2021, the Claimant was asked “if a FFP3 mask was provided would you be able to return to work”. His answer was that he was unsure, but he did wish to come back when he felt able to do so.[16]In his evidence to the ET, the Claimant said that by August 2021 his anxiety and depression had deteriorated to such an extent that he was unable to leave the house, was unable to attend meeting with the Respondent and, by September 2021 was unable to return to work in any capacity.[17]In the course of regular review meetings and correspondence, the Respondent explained to the Claimant the reasons why it was declining to give him a FFP3 mask (as described above). On 17 August 2021, the Claimant filed a grievance, and a grievance hearing took place on 26 November 2021. The manager who dealt with the grievance, Ms Jobling, sought further advice from Occupational Health, who consulted with the Claimant. He told Occupational Health that he could return to work if he was given a non-patient facing role or if he was assured that he would not be required to transport Covid-positive patients. A grievance outcome letter was sent to the Claimant on 13 December 2021. The Claimant was told that he had been assessed by the Respondent’s risk department and the advice was that level 2 PPE, i.e. a FFP2 mask, was the appropriate level of PPE for his role. This was in accordance with the National Guidance. The Claimant was told that Respondent had not simply applied the risk advice and National Guidance to him, but that management had met to review the advice and Guidance in order to consider whether they should be applied to the Claimant. The decision was that they should. A FFP3 mask cannot be used for a full shift or for extended periods of driving, and one in three Covid patients are asymptomatic. Ms Jobling said that the FFP3 mask does not give 100% protection from Covid. Ms Jobling also said that, because of his anxiety, the Occupational Health Department had advised that the Claimant was unfit for alternative duties. The grievance outcome letter made clear that Ms Jobling understood that the problem, from the Claimant’s point of view, was anxiety, and that he felt that a FFP3 mask would reduce the anxiety. Ms Jobling said that a further referral would be made of the Claimant to Occupational Health.[18]The Claimant appealed against the grievance decision. He said that he felt that he was being discriminated against as other staff at the Respondent Trust have been issued with FFP3 masks. Further meetings were arranged in early 2022 to discuss the outcome of the grievance with the Claimant, but he said that he was unable to attend these meetings because of a down turn in his psychological condition and due to ongoing medical issues. On 31 January 2022, Mr Stephen Carr, the Claimant’s line manager, wrote to him to say that he had referred the Claimant back to Occupational Health, and reminded him that he was required reasonably to engage with the absence management policy and to attend regular meetings. On 2 February 2022, Occupational Health informed Mr Carr that the Occupational Health Consultant had recommended that an Occupational Health referral was not required at this time, because the Claimant was refusing to return to alternative duties and had advised Mr Carr that he could not attend meetings either face to face or via telephone. The Occupational Health Consultant said that this was now an organisational issue to manage. On 8 February 2022, the Claimant wrote to Mr Carr, saying that he was currently not fit for work, as confirmed by his GP. He said that he was only fit to work with adjustments, but these reasonable adjustments were not being implemented. He said, “Therefore the Trust is discriminating against me due to my disability and is failing to make reasonable adjustments.”[19]On 16 March 2022, the Claimant lodged a claim form in the Employment Tribunal for failure to make reasonable adjustments.[20]The grievance appeal hearing took place on 29 April 2022, before Ms Tracey Gilchrist, the Respondent’s Deputy Director for Quality and Patient Safety. The Claimant told Ms Gilchrist that he was particularly concerned that he could potentially be transporting Covid-positive patients whilst in his role as Ambulance Care Assistant. He was concerned that he regularly came into contact with patients who were coughing and sneezing, including dementia patients with whom he had close contact whilst entering their homes. He offered to provide his own FFP3 mask. The Claimant said that he was happy to wear a FFP2 mask when dealing with non-Covid patients and he would want to be able to decide when to wear the FFP3 mask. Ms Gilchrist’s view that it was not appropriate for the Claimant to use a FFP3 mask for the reasons that I have set out earlier in this judgment. She did not think it appropriate for the Claimant to provide his own mask, as there was a requirement for the Respondent to provide standardised safety equipment so as to ensure safety. Ms Gilchrist took the view that the Claimant had become fixated on being issued with a FFP3 mask, when in fact the provision of such a mask would not provide the necessary level of assurance to get the Claimant back to work.[21]In a letter dated 5 May 2022, Ms Gilchrist dismissed the Claimant’s appeal, setting out in detail the reasons for her decision. She made clear that she understood that it was anxiety that was stopping the Claimant from going back to work. Ms Gilchrist said that whilst she did not uphold the grievance appeal associated with the FFP3 mask, she acknowledged the Claimant’s concerns. She said that it was proposed to bring the Claimant back to a different role and in parallel to look at alternative masks. The Claimant was invited to a case management meeting on 11 May 2022 to discuss a way forward with representatives of management, Occupational Health, human resources and the Respondent’s risk and regulatory team. That meeting did not take place as the Claimant did not feel up to attending face to face meetings. The Claimant attended a further Occupational Health assessment by telephone on 24 May 2022. The report following the assessment stated that the Claimant said that he had noted a significant decline in his mental health symptoms following the appeal hearing. He had benefited from NHS support but this had now ended and this had also contributed to a decline in his symptoms. The report said that the Claimant was not fit to return to work in his substantive role or an alternative role at present, and no timescale could be set for the Claimant’s recovery or return to work.[22]A further long term sickness review meeting took place by telephone on 6 June 2022. The Claimant said that he did not feel that alternative duties on Station would be suitable, though he would consider working from home, if available. Another long term sickness absence review took place on 11 July 2022. The Claimant said that nothing much had changed. The Claimant still felt unable to take part in the case review that had originally been scheduled for 11 May. A further long term sickness absence review took place (again by telephone) on 16 August 2022. Again, the Claimant said that little had changed. The representative from Occupational Health recorded that the Claimant said that he still did not feel able to take part in the case review. He said that he did not feel like he could manage a return to a non-patient facing role. He said that he did not wish to and did not feel well enough to be considered for redeployment in a non-patient facing role. The Claimant was asked if he felt he could return to his substantive role in the future and he said that he did not wish to comment on this.[23]The Claimant was invited to a final long term sickness absence hearing on Wednesday 21 September 2022. This meeting was conducted by Mr Barry Dews, Head of Scheduled Care. The Claimant was warned that, at this hearing, his continued employment with the Respondent would be considered, and that this might result in his employment being terminated on the ground of capability due to ill-health. The Claimant was asked how he was. He said, “Not too good, but I’m happy to go ahead. I don’t really have anything more to say, let’s just get on with it. I have no arguments. I am past caring.” He said that, as regards the management of his sickness absence case, there was nothing to be done, “I cannot give a date when I may be fit to return to work.” He said, “I was not prepared to do another role than my substantive role.” The Claimant was asked whether, clinically, the Respondent could have done anything more. He replied, “possibly not – no, I don’t think so.” He agreed that the Respondent’s absence policy and procedures had been followed. After the meeting was over, the Claimant was informed by Mr Dews that a decision had been taken to terminate his employment with immediate effect from 21 September 2022, on the ground of ill-health. The Claimant was paid up until the end of October 2022, and was informed of his right of appeal.[24]On 6 October 2022, the Claimant appealed against his dismissal on the ground that his dismissal was discriminatory and unfair, as he would not have been in this position if reasonable adjustments had been made by the Trust when he first asked for them. In a letter dated 8 October 2022, the Claimant said, “I was absent from work as the Trust would not provide me with FFP3 masks to alleviate my anxiety.” The appeal hearing took place on 25 November 2022, and was conducted by Mr Shane Woodhouse, Head of Operations for Unscheduled Care, South Division. Mr Woodhouse dismissed the Claimant’s appeal. He said that the allegation that the Claimant would have been able to work if he had been provided with a FFP3 mask was not upheld, because, by his own admission, the Claimant remained unsure as to whether, if, and, if so, when, he may be able to return to work, even if the Respondent had provided him with FFP3. Mr Woodhouse concluded that the provision of a FFP3 mask was not a reasonable adjustment. The Respondent had acted in accordance with National Guidance, to which the Respondent had consistently adhered during the pandemic. Utilisation of FFP3 had disadvantages, in that it led to a downtime to don and remove the equipment, it created a communication barrier, and impaired tasks such as driving. The ET’s ruling on failure to make reasonable adjustments[25]The ET found that the Claimant fell within the definition of a disabled person within section 6 of the 2010 Act. He had a mental impairment which had lasted or was likely to last more than 12 months, and which had a substantial adverse effect on his ability to carry out day to day activities (judgment, paragraphs 60-61). The Tribunal accepted also that the Respondent knew or reasonably ought to have known that the Claimant was a disabled person at the time when the alleged acts of disability discrimination took place (judgment paragraph 62). The ET gave its reasons for dismissing the Claimant’s claim regarding failure to make reasonable adjustments at paragraphs 74-84. of its judgment. It is necessary to set out this passage of the ET’s judgment in its entirety. The ET said:
“74. As is mentioned in paragraphs 4 and 5 above, the main thrust of the claimant’s complaints to the Employment Tribunal related to the respondent’s failure/refusal to provide him with an FFP3 face mask. The claimant maintained that this amounted to a failure to make reasonable adjustments contrary to sections 20-21 of the Equality Act 2010. 75. The duty to make adjustments under section 20 comprises three discrete requirements, any one of which will trigger an obligation on the employer to make any adjustment that would be reasonable: (a) The first requirement applies where a provision criterion or practice (PCP) has been applied by the employer that puts a disabled person at substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. (b) The second requirement applies where a physical feature puts a disabled person at a similar substantial disadvantage in relation to a relevant matter, and (c) The third requirement pertains where the lack of provision of an auxiliary aid puts a disabled person at a substantial disadvantage in relation to a relevant matter. In each instance the employer falls under a duty to take such steps as it is reasonable to take to avoid the disadvantage in question. In the claimant’s case, the first and third requirements only are relevant to his claims. The application of a PCP only applies to the first requirement, as the thirdrequirement is where the lack of the provision of the auxiliary aid itself puts the disabled person at the disadvantage. (Mallon v Aecom Ltd – [2021] ICR 1151). 76. In the claimant’s case, the respondent has conceded that it applied a PCP that FFP3 masks were only provided to staff performing roles which exposed them to aerosol generating procedures (AGPs). However, the respondent does not accept that the application of that PCP put the claimant at a substantial disadvantage. Furthermore, the respondent does not concede that the lack of the FFP3 face mask put the claimant as a disabled person at a substantial disadvantage. 77. Ms David’s [counsel for the Claimant’s] submissions on behalf of the claimant were that the claimant tied the lack of an FFP3 mask to his worry and heightened anxiety which led to his inability to attend work. On 18 May 2021 the claimant reported stress related symptoms which he attributed in the main to being provided with respiratory PPE in the form of a surgical mask. Ms David submitted that the claimant had consistently raised the provision of the FFP3 mask with his manager, both in sickness absence reviews and in his grievance and grievance appeals. Ms David submitted that the claimant’s multiple requests to use an FFP3 mask meant that the provision of such a mask would provide him with the chance of allaying his anxiety to such an extent that he would have been able to return to work. Mr Webster’s [counsel for the Respondent’s] submissions were that, whilst it does not have to be established that the step would necessarily remove the disadvantage, it must be shown that there is a real prospect that it would. (Romec v Rudham – [2007] All ER 206). 78. Mr Webster’s submissions were that, whilst the claimant consistently sought an FFP3, his own evidence was such that his anxiety about Covid was too deep seated to materially improve with the provision of a mask. 79. It is most important for the Employment Tribunal not to lose sight of the root cause of the claimant’s anxiety which prevented him from attending for work. That anxiety was the risk of contracting Covid-19, the possibility of him transmitting that to other members of his family and the potential impact of the virus on both himself and those members of his family. That risk heightened the claimant’s anxiety to such an extent that he was unable to attend for work. The disadvantage suffered by the claimant was that he was more likely to be subjected to the respondent’s absence management policy and ultimately to be dismissed because his heightened anxiety meant that he was unable to attend for work. 80. The duty to make an adjustment or to provide an auxiliary aid would only arise if the adjustment or the auxiliary aid would have a real prospect of removing that disadvantage. The question for this Tribunal is therefore realistically, “Were he to be provided with an FFP3 mask, what were the chances of the claimant returning to work and maintaining attendance at work to such an extent that he would not be subjected to the respondent’s absence management policy and would not have been dismissed?” 81. The Tribunal was not satisfied in the claimant’s case that, were he to have been provided with an FFP3 mask, there was a realistic chance that he would have returned to work to such an extent that he would not have been dismissed. The Tribunal accepted the evidence of the respondent’s witnesses about their genuine reasons as to why the provision of an FFP3 mask to the claimant would not have provided the level of protection which he demanded. The respondent conceded that its refusal to provide the claimant with an FFP3 mask was not because it was too expensive to do, nor was it because they did not have sufficient FFP3 masks in stock. Their reason was that they were following national guidance issued by central government and that, in addition, the FFP3 mask would not have provided the level of protection which the claimant demanded to enable him to return to work. 82. The Tribunal found it reasonable for the respondent to have provided the claimant with the FFP2 face mask. The Tribunal found that it was reasonable for the respondent to offer the claimant the opportunity to return to work in the stores, where he would not have been working “face to face” with patients who may have been diagnosed with, or exposed to, Covid-19. The respondent offered the claimant the opportunity to return to work on a phased return basis so that he could reacclimatise himself to the working environment. 83. Even when asked whether, and if so when, he would be able to return were he to be given an FFP3 mask, the claimant was entirely equivocal in his response. At no stage of the lengthy absence management process did the claimant specifically provide a date when he would be able to return to work were he to be offered an FFP3 mask. The Tribunal accepted Mr Webster’s submissions that the provision of the FFP3 mask could not be a reasonable adjustment when it was clear that the provision of the mask would not have led to the claimant’s return to work. From June 2021 the claimant had been unable to say whether he would be able to return if given an FFP3 mask. By September 2021 the claimant was too ill to meet his psychologist and by February 2022 was unable to speak to the respondent or attend meetings. 84. The Tribunal considered whether the provision of the FFP3 mask would, or might, be effective in removing or reducing the disadvantage that the claimant was experiencing at work as a result of his disability. The Tribunal was satisfied that it would not.”
The ET’s ruling on unfair dismissal

The ET’s ruling on unfair dismissal

[26]The ET set out sections 94 and 98 of the Employment Rights Act 1996 at paragraph 53 of the judgment. At paragraphs 69-71, the ET directed itself that, in assessing the fairness of a dismissal on long term sickness incapability grounds, the Tribunal must balance the needs of the employer, as represented by the legitimate aims pursued, against the discriminatory effect of the decision to dismiss. This meant that the ET’s “reasonableness” review for the purposes of the claim for unfair dismissal was essentially the same as the “proportionate means of achieving a legitimate aim” test that applies for the purpose of a “discrimination arising from disability” claim under section 15 of the 2010 Act. The EAT referred to O’Brien v Bolton St Catherine’s Academy [2017] ICR 737 (CA), and Department for Work and Pensions v Boyers (EAT 0282/19).[27]The ET explained why it rejected both the Claimant’s claim for unfair dismissal and his claim for discrimination arising from disability at paragraphs 72 and 73 of its judgment. The ET accepted the Respondent’s witnesses’ evidence about the impact upon the Respondent’s services of the Claimant’s lengthy absence. This was undisputed, and was to the effect that the Claimant’s prolonged absence had a significant effect on the Respondent’s ability to deliver its contractual obligations, namely a timely and responsive transfer for patients (judgment, paragraph 58). The ET was satisfied that the Respondent had properly addressed its mind to the evaluation of the impact upon the Claimant of his dismissal when weighed against the needs of the employer, and the ET concluded that, balancing the needs and interests of the Claimant and the Respondent, the Claimant’s dismissal was justified. The ET said, at paragraph 73:
“In coming to that conclusion, the Tribunal took into account the claimant’s complaint that the respondent had failed to make a reasonable adjustment for him by providing an auxiliary aid, namely the FFP3 mask.”
[28]At paragraph 74, the ET reiterated that the main thrust of the Claimant’s complaints to the ET related to the Respondent’s failure/refusal to provide him with a FFP3 face mask. The ET then addressed the “failure to make reasonable adjustments” claim at paragraphs 74-84, as set out above. The ET then said, at paragraph 85:
“85. For those reasons, the claimant’s complaint of unlawful disability discrimination (failure to make reasonable adjustments) is not well founded and is dismissed. Furthermore, the Tribunal’s finding that the respondent’s dismissal of the claimant was fair in accordance with the provisions of sections 94 and 98 of the Employment Rights Act 1996, is not adversely affected by the claimant’s complaint that the respondent failed to make reasonable adjustments. Finally, the Tribunal’s decision that the respondent’s dismissal of the claimant was a proportionate means of achieving a legitimate aim under section 15 of the Equality Act 2010, is not adversely affected by the claimant’s complaints of failure to make reasonable adjustments.”
The statutory provisions relating to failure to make reasonable adjustments

The statutory provisions relating to failure to make reasonable adjustments

[29]Sections 20 and 21 of the 2010 Act provide, in relevant part:
“20 Duty to make adjustments (1)Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A. (2)The duty comprises the following three requirements. (3)The first requirement is a requirement, where a provision, criterion or practice [PCP] of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. …. (5)The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. …. … (8)A reference in section 21 or 22 or an applicable Schedule to the first, second or third requirement is to be construed in accordance with this section. (11)A reference in this section, section 21 or 22 or an applicable Schedule to an auxiliary aid includes a reference to an auxiliary service. (12)A reference in this section or an applicable Schedule to chattels is to be read, in relation to Scotland, as a reference to moveable property. 21 Failure to comply with duty (1)A failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments. (2)A discriminates against a disabled person if A fails to comply with that duty in relation to that person. (3)A provision of an applicable Schedule which imposes a duty to comply with the first, second or third requirement applies only for the purpose of establishing whether A has contravened this Act by virtue of subsection (2); a failure to comply is, accordingly, not actionable by virtue of another provision of this Act or otherwise.”
[30]The applicable Schedule for workers is Schedule 8 to the 2010 Act (s20(13)). Paragraph 2(3) and 5(1) of Schedule 8 provide that the “relevant matters” in relation to the first and third requirements include “employment by A”. The appeal[31]The Claimant was represented before me by Mr Gus Baker of counsel. He did not represent the Claimant at the ET, where the Claimant was represented by different counsel. The Respondent was represented, both before me and at the ET, by Mr Andrew Webster of counsel.[32]There are five grounds of appeal. The first four are concerned with the claim of failure to make a reasonable adjustment and the last is concerned with the claim of unfair dismissal. So far as the appeal against the finding on failure to make a reasonable adjustment is concerned, and in addition to the four specific grounds relied upon, Mr Baker refers in his skeleton argument to what he described as the ET’s “key error”, the fundamental mistake which caused the ET to fall into error. I will deal first with the alleged “key error”, and then with the four specific grounds of challenge in relation to the “reasonable adjustments” finding, and before going on to deal with the finding of unfair dismissal. The “key error”: mischaracterisation of the Claimant’s substantial disadvantage for the purposes of section 20(5)[33]Mr Baker pointed out that the Claimant’s substantial disadvantage, as identified by the ET, was that, without the FFP3 mask, the Claimant was “more likely to be subjected to the Respondent’s absence management policy and ultimately to be dismissed because his heightened anxiety meant that he was unable to attend for work” (judgment, paragraph 78).[34]Mr Baker criticises this on the basis that is not the same as the substantial disadvantage which was pleaded in the Claim Form. This was that “due to the Claimant’s mental health condition he needs this type of mask to alleviate his stress and anxiety and allow him to work.”[35]Mr Baker said that the Claim Form thus focused on the stress and anxiety which the Claimant suffered when working without a mask, whereas the judgment focused on the consequence of the Claimant’s disadvantage (risk of absence management and dismissal) rather than the disadvantage itself (stress and anxiety). He said that this meant that the ET “jumped the gun”, and thereby prevented the analysis that was required about the cost vs benefit of the FFP3 mask. He said that it will often be the case that matters connected with disability will make it more likely that someone will be dismissed but that does not mean that an auxiliary aid should not be offered by way of reasonable adjustment. Mr Baker put his point as follows in his skeleton argument:
“Instead of asking itself: was the FFP3 mask a reasonable auxiliary aid to provide?, the Tribunal appears to have asked itself almost solely, “would the adjustment have stopped it being more likely that the Claimant would be dismissed by reason of absence management than his colleagues?”
[36]I do not accept Mr Baker’s submission that the ET fell into fundamental error in this regard.[37]First, I am unable to identify any real difference in the way that the ET described the substantial disadvantage at paragraph 78 of the judgment, and the way in which the substantial disadvantage is described in the passage from the Claim Form that I have just quoted. The Claim Form defined the disadvantage as being that the Claimant needed the FFP3 mask to allow him to work, because of his stress and anxiety. The judgment defined the disadvantage as being that, without the FFP3 mask, the Claimant would be unable to work, and so would be dismissed, because of his stress and anxiety. It comes to the same thing. It is a distinction without a difference. Put another way, the consequences of the disadvantage, and the disadvantage itself, are the same thing, namely not being able to work through stress and anxiety. On the facts of this case, it makes no sense to disconnect the stress and anxiety, on the one hand, from the inability to work, on the other.[38]Second, it is clear, in my judgment, reading the judgment in its entirety, that the ET did not fall into the trap that Mr Baker accuses it of falling into. The judgment demonstrates that the ET did indeed ask itself whether the FFP3 mask was a reasonable auxiliary aid to provide. It is true that the ET ultimately concluded that central reason why it was not reasonable to require the Respondent to provide the FFP3 mask was that it would have made no difference: the ET decided, as it was entitled to decide on the evidence before it, that there was no realistic possibility that the Claimant could have come back to work and carried on as an ambulance driver, even if he was given a FFP3 mask. This was a conclusion that was open to the ET to come to, in light of its findings of fact. As a result of his anxiety, the Claimant had a terror of catching Covid and, for the reasons fully explored by the Respondent and as set out in the ET’s judgment, a FFP3 mask would not have provided him with sufficient comfort. He would still have been vulnerable when dealing with patients who were not Covid-positive, because he would not be wearing the FFP3 mask at that point. And even when he was wearing the mask, the practical reality was that it would not have given the Claimant the level of assurance he was looking for. Whilst the Claimant was saying that the real issue was his anxiety and that this would be assuaged if he was given the mask, it was not as simple as that. The Respondent, and the ET, were, therefore, entitled to conclude that, notwithstanding what he said about it, the real problem for the Claimant was the psychological effects of the fear of catching Covid, and there was no real chance that the provision of a FFP3 mask would solve that problem.[39]Third, the ET was not saying that, just because a risk of dismissal would have remained even if the Claimant was provided with a FFP3 mask, this automatically meant that it was not reasonable to provide him with such a mask. Rather, the ET concluded that there was no real prospect of any outcome other than dismissal for long-term absence, even if the Claimant had been provided with the FFP3 mask. Mr Baker said, in his skeleton argument, that “many disabilities will lead to an employee being absent from work more than the average employee” and pointed out that it will often be the case that matters connected to disability will make it more likely that someone will be dismissed by reason of their absence from work. That may well be so, but the difference between the present case and the examples provided by Mr Baker, which were of an employee with mobility problems who needs a ramp, an employee with heat or cold sensitivity who requires an adjustment to a uniform policy, and an employee with insomnia who requires an adjustment to working hours, is that, in each of those cases, the adjustment that is sought stands a fighting chance, a real prospect, of making a difference and rendering it possible for the worker to remain in employment. In the present case, on the basis of the findings that the ET was entitled to make, and the conclusions based on those findings that the ET was entitled to come to, there was no chance that the Claimant would have stayed in employment, even if he had been provided with the FFP3 mask.[40]Fourth, it is not the case that, when assessing the reasonableness of providing a FFP3 mask as an auxiliary aid, all the ET did was to ask itself whether the adjustment would have stopped it being more likely that the Claimant would be dismissed than his colleagues. The ET also took into account other grave disadvantages of giving the Claimant a FFP3 mask. His main job was driving, and he could not safely drive whilst wearing such a mask. The mask would need to be decontaminated on a regular basis, and this would eat into the working day (even assuming it could be done on the road).[41]The Claimant obtains no assistance, in relation to the argument about the “key error”, from the passages in the authorities that are relied upon by Mr Baker in his skeleton argument in support of this point. Paragraph 29 of the judgment of Elias LJ in Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265; [2017] ICR 160 (CA) simply identifies some of the factors that should be taken into account when deciding whether a step is reasonable. The passage cited by Mr Baker from Noor v Foreign and Commonwealth Office [2011] ICR 695 (EAT), per HHJ Richardson at paragraphs 34-36 is simply about the need to offer a level playing field to job applicants.[42]In his oral submissions, Mr Baker focused on a somewhat different aspect of what he said was the ET’s “key error”, namely that by focusing on the risk of dismissal, the ET focused entirely on the position at the end of the relevant period. He said that the ET should instead have looked at the position from the moment at which the Claimant went absent from work in May 2021. Mr Baker submitted that, even if, by the time of his dismissal, it was reasonable for the Respondent to conclude that there was no chance that the Claimant could return to work, even with a FFP3 mask, this was not the position more than a year earlier, when the Respondent had first given consideration to the request for an auxiliary aid in the form of the FFP3 mask. Mr Baker pointed out that the ET had accepted a submission made by counsel for the Claimant, in response to a time limit point taken by the Respondent, to the effect that the Claimant’s case was that the failure to provide a FFP3 mask was a failure which began in May 2021 and continued until the Claimant was dismissed on 25 November 2022. Also, the ET had found that the Respondent knew that the Claimant was disabled (a pre-condition for the applicability of section 20) from no later than 21 October 2021. It was clear, therefore, that the reasonable adjustments claim covered a substantial period of time, not just the point of dismissal itself. He submitted that the ET had erred in concentrating on the issue of dismissal, and so on the time of dismissal. As a result, he said, the ET had failed to consider whether there had been a failure to make reasonable adjustments at an earlier stage. The question of whether there was a failure to make reasonable adjustments must be considered by reference to the position during the entirety of the period to which the claim relates. An ET should not find that an employer had acted reasonably in declining to provide an auxiliary aid by reference to matters that were not known by the employer at the relevant time. The full information that the ET had about the Respondent in November 2022 had not been available to the Respondent at an earlier stage. Mr Baker submitted that the ET had failed to assess the reasonable adjustment claim by reference to things as they stood in the months prior to the Claimant’s dismissal.[43]On behalf of the Respondent, Mr Webster accepted that the reasonableness of a respondent’s refusal to provide an auxiliary aid must be assessed by reference to the position as it stood at the relevant time, not ex post facto. However, he submitted that it is clear from the ET’s judgment that the ET considered things as they stood throughout the period from May 2021 onwards and that the ET had found that the Respondent had not been in breach of its duties under section 20(3) and section 20(5) at any stage from May 2021 onwards.[44]I agree with Mr Webster. It is clear that the ET was well aware that it had to consider whether there had been any breach of the Respondent’s section 20 obligations from May 2021 onwards. This is shown by the ET’s ruling on the time limit issue, and from its finding as regards when the Respondent knew that the Claimant was disabled (not later than October 2021). Also, Mr Webster showed me an email that was sent by the ET to Ms David and Mr Webster on 17 November 2023, the final day of the ET hearing, in which the ET had asked for submissions about when the duty to make adjustments arose. The ET knew full well that the reasonable adjustments claim was not solely concerned with the position at the time of dismissal in November 2022. The analysis conducted by the ET of the reasonable adjustment claim at paragraphs 74-84 of the ET’s judgment plainly focused, not just on the end point, at which the Claimant was dismissed, but on the whole period from May 2021 onwards. There is nothing in the language used by the ET to suggest otherwise. The ET considered whether the Respondent acted reasonably throughout that period. This is made clear, for example, in paragraphs 83 and 84.[45]Moreover, the position did not change significantly throughout the relevant period. It remained the case throughout that the provision of a FFP3 mask, to be used only when transporting Covid-positive patients, would not in reality provide complete protection from Covid. Similarly, as the ET pointed out in paragraph 83, from June 2021 onwards the Claimant had been unable to say whether he would be able to return if given a FFP3 mask. Therefore, the same reasonable grounds for the ET’s conclusion that, regardless of what he might say or think, the reality was that there was no chance that the Claimant could come back and carry on working even if he was given a FFP3 mask, existed for the whole of the period to which the claim related. As Mr Webster put it, the ET found that there was no chance from the outset that the Claimant would return to work, even with a FFP3 mask.[46]The last sentence of paragraph 79 is another sign that Mr Baker’s criticism in this regard is unjustified. The ET said there that the disadvantage suffered by the Claimant was that he was more likely to be subjected to the Respondent’s absence policy and ultimately to be dismissed because his heightened anxiety meant that he was unable to attend for work (my emphasis). In other words, the disadvantage existed throughout the period when the Claimant was unable to attend for work. Ground 1: The ET erred in law by failing properly to apply section 20(5), mixing it up with section 20(3)[47]On behalf of the Claimant, Mr Baker submitted that the ET failed to identify and apply the difference between the first requirement, in section 20(3), and the third requirement, in section 20(5) of the 2010 Act.[48]In relation to the first requirement, which arises when a PCP places a disabled person at a substantial disadvantage when compared with those who are not disabled, the obligation is to take such steps as it is reasonable to have to take to avoid the disadvantage. In relation to the third requirement, which arises when a disabled person would, but for the provision of an auxiliary aid, be placed at a substantial disadvantage when compared with those who are not disabled, the obligation is to take such steps as are reasonable to take to provide the auxiliary aid.[49]Mr Baker said that the ET erred in law in that it analysed the Respondent’s duty under section 20(5) as if it was the duty under section 20(3). He said that this is made clear at a number of places in paragraphs 74-84 of the judgment, most clearly at paragraph 80, where the ET said:
“The duty to make an adjustment or provide an auxiliary aid would only arise if the adjustment or auxiliary aid would have a real prospect of removing that disadvantage.”
[50]I do not accept that this is a valid criticism of the ET’s reasoning. With respect, Mr Baker’s criticism of the ET’s reasoning fails to see the wood for the trees. It is clear from the ET’s judgment that the ET directed itself impeccably as regards the legal test to be applied both in relation to the first requirement in section 20(3), and in relation to the third requirement in section 20(5). This is shown by paragraph 75 (see above), in which the ET made clear that it understood that the ingredients of the test are different for the two requirements – as is obvious from the statutory language itself. Nonetheless, there can be cases in which a claim is made in parallel under both sections 20(3) and 20(5), and where the claim fails for the same reason in relation to both sections. This is such a case. Whether it was characterised as a claim under section 20(3), or under 20(5), or indeed as a claim under section 15, the Claimant’s claim for disability discrimination came down to the same issue, namely whether the Respondent should have issued him with a FFP3 mask, to wear when he was transporting Covid-positive patients. The ET rightly emphasised at several points in its judgment that this was the real issue in the case. Applying the statutory test for auxiliary aids in section 20(5), the Claimant fell at the first hurdle, because the ET found, on the facts, that the provision of the auxiliary aid, the FFP3 mask, stood no chance of removing the substantial disadvantage faced by the Claimant as compared to non-disabled persons, namely that his anxiety prevented him from going to work and doing his job. He also fell at the second hurdle, because it cannot be reasonable to provide an auxiliary aid which will not have any real prospect of helping the Claimant to alleviate or surmount his disadvantage.[51]At paragraph 75 of the judgment, the ET said, after referring to the first and third requirements in sections 20(3) and 20(5), that:
“In each instance the employer falls under a duty to take such steps as it is reasonable to take to avoid the disadvantage in question.”
This was a perfectly appropriate shorthand summary of the key duties imposed by sections 20(3) and 20(5). It does not mean that the ET ignored the differences between the two statutory tests.[52]The fallacy in Ground 1 is illustrated by the way it was put at paragraph 18 of Mr Baker’s skeleton argument. He said that:
“The Judge’s comment at paragraph 80 [set out at paragraph 49, above] has no basis in the statutory language. Whether or not providing the auxiliary aid might be reasonable depends on several factors, including the likelihood of returning to work.”
[53]It is correct that whether or not providing the auxiliary aid might be reasonable will, often, depend on several factors, but there will also be cases, of which this is one, in which one factor provides a complete answer. If the provision of an FFP3 mask would have had no realistic prospect of enabling the Claimant to return to work, then the ET was plainly right to conclude that the Respondent was not in breach of its duty under the third requirement in section 20(5) by declining to provide it. There will be other cases, on different facts, where the position is not so clear-cut, and where the likelihood of a return to work is just one of a number of different factors to be taken into account, but that does not mean that there cannot be cases in which the fact that the auxiliary aid will, simply and definitely, do no good is a conclusive reason why a respondent is not in breach of its section 20(5) duty. Ground 2: The Tribunal created its own, non-statutory, test[54]Mr Baker submitted that the ET applied the wrong test to the section 20(5) issue. He focused on a sentence in paragraph 80 of the ET’s judgment, in which the ET said:
“The question for this Tribunal is therefore realistically, “Were he to be provided with an FFP3 mask, what were the chances of the claimant returning to work and maintaining attendance at work to such an extent that he would not be subjected to the respondent’s absence management policy and would not have been dismissed?””
[55]Mr Baker said that this is no part of the statutory test, and that the correct approach is to focus on whether reasonable steps were taken to provide the aid, taking into account whether or not the auxiliary aid was expensive, or disruptive, or difficult to obtain; whether, from the employer’s perspective at the time, it would have been futile to obtain the auxiliary aid because of the low likelihood of the Claimant returning to work; the extent to which the auxiliary aid would alleviate the disadvantage being suffered; and any other relevant factors. He said that the question as to whether it would be futile to provide the auxiliary aid is not a “gateway”, and it is no part of the law that the Claimant must prove on the balance of probabilities that he would, in the Tribunal’s view, return to work.[56]This argument is, with respect, misconceived. The sentence in paragraph 80 of the ET’s judgment that Mr Baker relies upon has been taken out of context. It follows immediately on from this sentence:
“80. The duty to make an adjustment or to provide an auxiliary aid would only arise if the adjustment or the auxiliary aid would have a real prospect of removing that disadvantage.”
[57]Reading the sentence about which complaint is made in the context of the sentence that comes before it, it is clear that the ET was not setting out a new and incorrect formulation of the legal test that it had to apply. Rather, the ET was saying that, on the facts of this case, and in light of the arguments advanced by the parties, the central issue was whether the provision of a FFP3 mask had a real prospect of alleviating the Claimant’s anxiety about Covid to such an extent that he would be able to come back to work and carry on. This was, indeed, the central issue in the case. This was not a case in which the Respondent was arguing that it was not reasonable to expect it to provide the auxiliary aid for reasons of cost, or because the aid could not be sourced. Rather, this was a case in which the Respondent had taken the view, and was arguing before the ET, that the auxiliary aid stood no chance of solving the problem.[58]It is clear that the ET accepted this submission. The ET concluded, as a matter of fact and judgment, that there was no prospect that the provision of an FFP3 mask would remove the disadvantage facing the Claimant, namely that his anxiety was preventing him from going to work and staying in employment. At paragraph 83 of the judgment, the ET accepted the Respondent’s submissions that the provision of the FFP3 mask could not be a reasonable adjustment when it was clear that the provision of the mask would not have led to the Claimant’s return to work. Similarly, at paragraph 84, the ET said:
“84. The Tribunal considered whether the provision of the FFP3 mask would, or might, be effective in removing or reducing the disadvantage that the claimant was experiencing at work as a result of his disability. The Tribunal was satisfied that it would not.”
This wording shows that the ET concluded that there was no chance, no real prospect, that the provision of the mask would be effective in removing or reducing the disadvantage faced by the Claimant.[59]This was consistent with the way that the case was argued. Paragraph 77 of the judgment shows that both Ms David, the Claimant’s then counsel, and Mr Webster made submissions about whether there was a chance, or a real prospect (which comes to the same thing), that the FFP3 mask would have alleviated the Claimant’s anxiety to such an extent that he would have been able to return to work.[60]As Mr Webster submitted, this meant that, for the purposes of section 20(5), the Claimant was not at a substantial disadvantage, but for the provision of a FFP3 mask, in relation to a relevant matter, and so the duty to take such steps as was reasonable to take in order to provide the auxiliary aid was not triggered.[61]It is clear, in my view, that if the steps that it is suggested that a Respondent should have taken by way of reasonable adjustment (whether in the form of the provision of an auxiliary aid or otherwise) would have no real chance of avoiding or reducing the disadvantage, then the Respondent is under no duty to take those steps. This is no more than common sense. It cannot be reasonable to require a party to make an adjustment that has no prospect of achieving the desired effect. In many cases, the question of the likelihood that the adjustment will help will be only one of a number of relevant considerations, for the purposes of section 20 of the 2010 Act, but there are cases, such as this one, in which the conclusion that the adjustment has no real prospect of making a positive difference provides a complete answer.[62]This is supported by the authorities. In Paulley v FirstGroup plc [2017] UKSC 4; [2017] IRLR 258, Lord Neuberger PSC, with whom Lord Reed JSC agreed, made clear that in order for a claim for breach of a reasonable adjustment to succeed, it must be shown that there would have been at least a real prospect that the adjustment would have made a difference (judgment, paragraph 60). The other three members of the Supreme Court, Baroness Hale DPSC, Lord Kerr JSC, and Lord Clarke JSC also applied the “real prospect” test (see judgment at paragraphs 110, 138 and 149). Though Paulley was a section 20(3) case, the same must apply to a section 20(5) case. In one of the cases cited by Lord Neuberger, Foster v Leeds HospitalNHS Trust [2011] EqLR 1075 (EAT), Keith J said that, in order for an adjustment to be reasonably required, there had to be “some prospect” (paragraph 17) or “a chance” (paragraph 20) that the adjustment would have made a difference. See also, P Lancaster v TWBA Manchester(UKEAT/0460/10/DA, Slade J) at paragraphs 44-46, South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Mrs C Billingsley (UKEAT/0341/15/DM, Mitting J), at paragraph 17, and Romec Ltd v Mr H.S Rudham (UKEAT/0069/07/DA, HHJ Peter Clark), at paragraph 39.[63]This is entirely consistent with the Equality and Human Rights Commission (“EHRC”) Statutory Code of Practice on Employment, made pursuant to the power granted to the EHRC by section 14 of the Equality Act 2006 (“the 2006 Act”). The Code is not legally binding, but it is admissible in evidence and must be taken into account by a court or tribunal in any case in which it appears to the court or tribunal to be relevant (2006 Act, section 15(4)). Paragraph 6.23 of the Code states that what is a reasonable step for the employer to take will depend on all the circumstances of the case. Paragraph 6.28 says that a factor which might be taken into account when deciding what is a reasonable step for an employer to have to take is whether taking any particular step would be effective in preventing the substantive disadvantage, and paragraph 6.29 states that ultimately the test of the “reasonableness” of any step an employer may have to take is an objective one and will depend on the circumstances of the case. There is nothing in the Code to contradict the proposition that if there is no real prospect of the adjustment making a difference, it will not be a reasonable adjustment.[64]Mr Baker submitted that the ET misdirected itself by treating the likelihood that the auxiliary aid would be effective as a “gateway” which is not to be found in the statute, but this is not a fair representation of the ET’s reasoning. All the ET did was to find that, on the facts of this case, the auxiliary aid stood no chance of doing any good and so that the Respondent was not in breach of section 20(3) by failing to provide it.[65]In my judgment, the authorities that Mr Baker has cited in support of Ground 2 do not assist him. In Noor v Foreign and Commonwealth Office, HHJ Richardson said, at paragraph 33, that:
“Although the purpose of a reasonable adjustment is to prevent a disabled person from being at a substantial disadvantage, it is certainly not the law that an adjustment will only be reasonable if it is completely effective.”
[66]I respectfully agree. The fact that an adjustment might help somewhat but would not entirely eradicate the disadvantage does not mean that it cannot be a reasonable adjustment. But that is not this case. The ET concluded in the present case that the provision of the FFP3 mask would not help at all.[67]The Noor case was concerned with very different facts. In that case, an Employment Judge had struck out a claim arising out of interview arrangements for a disabled job applicant, because there was evidence that the claimant would not have obtained the job, even with a level playing field. The EAT held that this was the wrong approach, because the reasonable adjustments might have made a difference, even if the claimant would still have been unsuccessful, because he would have not have had such a distressing experience: see judgment, paragraph 37. There is nothing in the judgment in Noor that supports the contention that it can be reasonable to make an adjustment which would not have any impact upon alleviating the substantial disadvantage.[68]Mr Baker also relied upon a passage in Griffiths v Secretary of State for Work and Pensions, in which Elias LJ said, at paragraph 29:
“So far as efficacy is concerned, it may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step notwithstanding that success is not guaranteed; the uncertainty is one of the factors to weigh up when assessing the question of reasonableness: see the observations of Lewison LJ in Paulley v FirstGroup plc [2014] EWCA Civ 1573, [2015] 1 WLR 3384 , paragraphs 44-45.””
[69]Elias LJ was dealing there with a different issue. The fact that it may be reasonable to make a reasonable adjustment even though it cannot be guaranteed of success does not mean that a respondent is obliged to make an adjustment which has no realistic prospect of success. Ground 3: mischaracterisation of disadvantage[70]In Ground 3, Mr Baker submitted that the ET wrongly defined the Claimant’s substantial disadvantage as being that he was more likely to be subjected to the Respondent’s absence management policy and ultimately to be dismissed because his heightened anxiety meant that he was unable to attend for work. Mr Baker said that this did not reflect the way that the Claimant’s case was put in his ET1, which was that “due to the Claimant’s mental health condition he needs this type of mask to alleviate his stress and anxiety and allow him to work”. Mr Baker said that the absence management policy, and the prospect of dismissal, were a potential consequence of the disadvantage, not the disadvantage itself, and that the ET’s approach therefore mixed up questions of liability and remedy. He said that the problem with the Tribunal’s approach was that it lessened the duty to make reasonable adjustments in cases involving serious disabilities, where integration back into work will be challenging, requiring the Claimant to prove what the consequence of those adjustments would be.[71]In my judgment, this ground is just another way of putting the arguments that have been put forward on behalf of the Claimant in the “key error” argument and in Ground 2. As I have already said, when dealing with the “key error” argument, the ET did not distort or misrepresent the substantial disadvantage that was faced by the Claimant. It is a wholly artificial dichotomy to seek to differentiate between the Claimant’s heightened anxiety rendering him unable to work, on the one hand, and his heightened anxiety rendering him at risk of dismissal, on the other. They are the same substantial disadvantage.[72]Nor do I accept that the way in which the ET described the substantial disadvantage lessened the duty to make reasonable adjustments in cases involving serious disabilities. The ET correctly applied the law, which includes the proposition that if there is no chance of an adjustment helping to ameliorate the disadvantage, then it is not reasonable to expect the respondent to make the adjustment. It does not mean that those with serious disabilities are treated any differently than those who are less seriously disabled. Ground 4: Irrelevant factors[73]The final ground of challenge to the ET’s finding on reasonable adjustments is that the ET took irrelevant factors into account.[74]The first factor which the Claimant said was wrongly taken into account was the ET’s conclusion that the FPP3 mask would not have provided the level of protection which the Claimant demanded to enable him to return to work (judgment, paragraph 81). Mr Baker said that this meant that the ET wrongly took into account whether the Claimant’s psychological state was objectively reasonable.[75]This is not a fair criticism of the ET’s reasoning. The ET was not making a value judgment about the Claimant’s mental state. It was, perfectly correctly and sensibly, considering whether there was any chance that the FFP3 mask would make a difference. The ET concluded, as it was entitled to do on the facts, that the Claimant’s fear of Covid was so deep-seated that there was no prospect that the provision of a FFP3 would have comforted him to such an extent that he would have been able to go back to work as normal. The fact that a FFP3 mask would not, in practice, have protected the Claimant from Covid meant that it would not solve the psychological difficulty facing the Claimant.[76]Secondly, Mr Baker submitted that it is irrelevant that the Respondent acted reasonably in offering other adjustments. I do not understand this submission. It is plainly relevant to the reasonable adjustment challenge that the Respondent offered the Claimant the opportunity to work in the stores, where he would not come into contact with Covid-positive patients, and also that the Respondent offered the Claimant the opportunity of a phased return, so that he could reacclimatise himself to the working environment. The ET did not say that the mere fact that these offers were made meant that the “reasonable adjustment” challenge must fail. The ET also went on to consider, and, indeed, focus upon whether the Respondent should have offered the Claimant an auxiliary aid in the form of a FFP3 mask. Ground 5: Unfair dismissal[77]Mr Baker submitted that the ET erred in law because it did not apply section 98(4) of the 1996 Act and/or failed to give proper reasons for dismissing the claim. He said that the ET appear to have assumed that because the Claimant’s claims of disability discrimination had been dismissed, it necessarily followed that the claim for unfair dismissal would also fail.[78]Section 98(4) of the 1996 Act provides that: (4) Where the employer has fulfilled the requirements of subsection (1) [potentially fair reason for dismissal, in this case capability], the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a)depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b)shall be determined in accordance with equity and the substantial merits of the case.”[79]The question whether a dismissal is fair or unfair is legally different from the question whether there has been disability discrimination arising from a failure to make reasonable adjustments. However, in a case such as this, the factual context is the same, and many, if not all, of the relevant considerations are the same: see O’Brien v Bolton St Catherine’s Academy, at paragraph 53. As the ET recorded at paragraph 4 of its judgment, the Claimant contended that his dismissal because of long term absence was unfair because the Respondent had failed to provide him with the FFP3 face mask which he claimed would have enabled him to return to work so that he would not have been dismissed. This was the same reason why he contended that the Respondent had failed to make a reasonable adjustment in breach of its duty under section 20 of the 2010 Act. As I have already said, at paragraph 5 of the judgment, the ET noted that:
“Whilst the unfair dismissal claim engages the provisions of the Employment Rights Act 1996 and the disability discrimination claims engaged the provisions of the Equality Act 2010, it was accepted by both parties that the main issue in the case and thus all the claims revolve around the respondent’s alleged failure/refusal to provide the claimant with the FFP3 face mask.”
[80]The practical reality, therefore, was that the claims for disability discrimination and the claim for unfair dismissal stood or fell on the outcome of the argument that the Respondent was unreasonable in failing to provide the Claimant with a FFP3 mask.[81]The ET correctly directed itself on the law relating to unfair dismissal, at paragraphs 55-56 of the judgment. At paragraphs 69-71 of the judgment (summarised at paragraph 23, above), the ET accepted, in the Claimant’s favour, that, in order to avoid the counter-intuitive outcome of a s15 disability discrimination claim succeeding whilst the unfair dismissal claim failed, the reasonableness test for judging the unfair dismissal claim should be “levelled up” to the equivalent of the proportionality test, in respect of the section 15 claim, rather than the latter being “levelled down”. In other words, the ET applied, if anything, a more onerous test, from the Respondent’s point of view, for the unfair dismissal claim than might normally be applied.[82]In keeping with that approach, the ET applied the proportionality test to the Claimant’s dismissal, both for the purposes of section 15 of the 2010 Act, and for the purposes of unfair dismissal. The ET found, at paragraphs 72-73, that it was proportionate and justified for the Respondent to dismiss the Claimant in September 2022. In reaching that conclusion, the ET expressly took into account the allegation that the Respondent had failed to make a reasonable adjustment for the Claimant by failing to provide him with the FFP3 mask (judgment, paragraph 73). The reasons why this did not render the dismissal unfair were the same as the reasons why the failure to provide the FFP3 mask did not amount to a failure to make a reasonable adjustment. After dealing with this in detail at paragraphs 74-84 of the judgment, the ET returned to the question of unfair dismissal at paragraph 85, saying that the ET’s finding that the Respondent’s dismissal of the Claimant was fair in accordance with the provisions of sections 94 and 98 of the 1996 Act was not adversely affected by the Claimant’s complaint that the Respondent failed to make reasonable adjustments.[83]The ET did not overlook the need to consider whether there were procedural failings which made the dismissal unfair. This was made clear by paragraph 56.3 of the judgment. However, there was no suggestion in this case that the Respondent had failed to follow fair absence management, grievance or appeal procedures in this case: the real issue was whether it was unfair to dismiss the Claimant whilst declining to supply him with a FFP3 mask.[84]In these circumstances, the ET directed itself correctly on the law relating to unfair dismissal, applied the law to the facts that it found, and then reached a conclusion which was fully justified in light of those facts. The ET gave ample reasons for its decision. The ET did not overlook any relevant considerations. It is clear that the ET did not fall into the trap of thinking that it follows automatically, if a claimant’s disability discrimination complaints fail, that the unfair dismissal claim will fail also. However, this was a case in which the central issues for disability discrimination and for unfair dismissal were more or less identical, and the standard by which the Respondent’s actions were to be judged was essentially the same for both causes of action, as was the position in O’Brien v Bolton St Catherine’s Academy, see Underhill LJ at paragraphs 53-55. This is not to say that there cannot be cases in which the outcome of a disability discrimination claim and an unfair dismissal claim on the same facts might be different. In Department of Work and Pensions v Boyers, at paragraph 37, Matthew Gullick KC (sitting as a Judge of the EAT), recognised that in some cases this would be a possibility. But it does not follow that, in this case, the ET erred in law in coming to the same conclusion in relation to the disability discrimination claims and the unfair dismissal claim.[85]If the Claimant had succeeded with his appeal in relation to the reasonable adjustment argument, then this might have meant that the ET’s finding on unfair dismissal could not stand. However, as the appeal on the reasonable adjustment issue has failed, this does not arise. Conclusion[86]The ET’s judgment in this case was impressively thorough, well-reasoned, and clear. There was no misdirection.[87]For these reasons the appeal is dismissed.

Cited in 12 later judgments

and 3 more of the most senior