The Equality Act 2010 imposes a duty on employers to make reasonable adjustments to help disabled job applicants and employees where they are put at a substantial disadvantage, in comparison with persons who are not disabled.
A reasonable adjustment is a modification or accommodation – for example, providing information in accessible formats, altering the disabled worker’s hours of work or training, or providing special equipment.
However, what if the employer perceives that the requested adjustment has no real prospect of helping to avoid or reduce the disadvantage? This was considered by the Employment Tribunal in the case of Hindmarch v North-East Ambulance NHS Foundation Trust [2025].
The Claim
Mr Hindmarch worked as a non-emergency ambulance driver for the North-East Ambulance Service (the Trust). Mr Hindmarsh’s role required him to collect patients from hospital wards in order to transfer them to another hospital or home, or to transport patients from their homes to medical appointments.
Mr Hindmarsh suffered from poor mental health, including depression and anxiety. Mr Hindmarsh also had an underlying asthmatic condition and had extreme anxiety about COVID-19.
During the pandemic, Mr Hindmarsh refused to return to work unless he was given an FFP3 mask to wear while transporting COVID-19 positive patients. As a non-emergency ambulance driver, Mr Hindmarsh has been issued with a FFP2 mask in line with National Guidance. However, Mr Hindmarsh requested a more robust FFP3 mask, which provides greater protection against COVID.
The Trust decided not to provide Mr Hindmarsh with a FFP3 masks for two key reasons:
- The Trust took the view that the FFP3 mask would not provide Mr Hindmarsh with complete protection from the risk of catching COVID. Mr Hindmarsh intended to only wear the FFP3 mask when transporting COVID-positive patients, however there was no guarantee that he would not come into contact with infected patients when transporting patients who had not tested positive.
- Given that the FFP3 mask would not provide complete protection, the Trust considered that the mask would not assuage Mr Hindmarsh’s concerns, especially as Mr Hindmarsh had not unequivocally stated that he would be able to return to work if he had a FFP3 mask.
Mr Hindmarsh was subsequently dismissed on the grounds of capability due to ill health while on long-term sickness absence. He brought claims against the Trust including failure to make reasonable adjustment and unfair dismissal.
The key question for the Tribunal was: were Mr Hindmarsh to be provided with an FFP3 mask, what were the chances of Mr Hindmarsh returning and maintaining attendance at work to such an extent that he would not be subjected to the Trust’s absence management policy and would not have been dismissed?
The Decision
The Employment Tribunal accepted the Trust’s argument that it had not failed to make a reasonable adjustment because the employee’s anxiety about Covid was so acute that, even if he had been given a FFP3 mask, there would have been no real prospect that he would have returned to work. Mr Hindmarsh’s claims were dismissed.
Mr Hindmarsh appealed to the Employment Appeal Tribunal and his claims were again dismissed. The Employment Appeal Tribunal determined that where there is no real prospect of an adjustment helping to avoid or reduce the disadvantage, then the employer is under no duty to make the adjustment.
What does this mean for employers?
The duty to make a reasonable adjustment does therefore not arise for employers where there is no real chance that it will alleviate the disadvantage faced by the employee.
However, employers must be aware that this does not mean that employees need to demonstrate that the proposed adjustment would be effective, merely that there is a chance that it would be effective. For the duty to arise, there must only be a prospect that it will succeed.
Ultimately, the duty to consider making reasonable adjustments falls on the employer, and employers should take an open and cooperative approach to exploring reasonable adjustments with disabled employees.
For expert advice on making reasonable adjustments in the workplace, please contact our Employment Team.
