How reasonable do reasonable adjustments have to be?

If an employee has a disability, the employer is usually expected to make reasonable adjustments for that. However, what if the disability is so unusual that the adjustments are no longer reasonable? Our article shows a case that highlights this issue and sets out recommendations for employers.

Reasonable adjustments are part of the disability discrimination landscape; an employer has a duty to make them when a disabled person is put at a substantial disadvantage by:

a provision, criterion or practice (PCP) applied by or on behalf of the employer,a physical feature of premises occupied by an employer, or the lack of an auxiliary aid

But what constitutes ‘reasonable’ and how far should an employer have to go in order to accommodate the needs of disabled employees?

The case of Dyer v London Ambulance NHS Trust shed some light on this question and gave useful guidance to employers when facing requests for adjustments by disabled employees.

Background

Dyer was employed as a call operator in a busy 999 call centre, along with many other employees. The centre was also open to members of the public.

In 2006, after having worked at the centre for seven years, she developed a severe reaction to an aerosol body spray. The symptoms of this included both sweating and shortness of breath.

Over the next three years or so, she suffered five allergic episodes, the last of which was near-fatal and required a four-day stay in hospital. In March 2009, she signed off and took long term sick leave from which she did not return to work.

The Trust did attempt to alert employees to the risks that that aerosol and perfumes posed to Dyer, but the approach did not alleviate the situation. A total ban on aerosols and perfumes would have been almost impossible to implement in such a busy environment; in the event of someone inadvertently forgetting this rule, or a member of the public who was not aware of it, the situation could have proved fatal.

Following medical advice from a leading expert, it was concluded by the Trust that no reasonable adjustment could be made to prevent Dyer being exposed to aerosol sprays or perfumes. She was dismissed on capability grounds in June 2011.

Following her dismissal, she brought claims for unfair dismissal and disability discrimination. The provision, criterion or practice she identified was allowing people to spray cosmetic products in communal working areas. However, there was the suggestion that someone who entered the workspace wearing perfume might cause an adverse reaction. Dyer said that her condition qualified as a disability for the purposes of the Equality Act 2010 and therefore, under Section 20 of the Act, the Trust had to make reasonable adjustments so that she could return to work.

The Employment Tribunal

It was noted at the tribunal hearing that implementing a policy preventing the use of aerosols and perfumes might be practicable in a smaller organisation. However, given the size of the Trust’s call centre and the number of people having access to it, it was neither reasonable nor practicable to expect the Trust to implement such a policy. It was also noted that the results of somebody failing to observe the policy could be fatal.

Since the decision made by the Trust was the only one a reasonable employer could make in the circumstances, the Employment Tribunal also dismissed the unfair dismissal claim. Dyer appealed.

The Employment Appeal Tribunal’s decision

The EAT upheld the Employment Tribunal’s decision. No reasonable adjustments could have been made in the circumstances for an employee who had a sensitivity to aerosols and perfume that could well be life-threatening.

The Trust’s attempts to alert employees to the risks that aerosol and perfumes posed was noted, as was the fact that this had not improved the situation. The Employment Tribunal was correct when it said that achieving a perfume and aerosol-free environment would not be possible for the Trust to achieve.

Dyer had expressed a desire to return to work but this did not affect the assessment of whether it was reasonable to make an adjustment. In her argument, she cited the principle that an employer is under no duty to dismiss an employee if they are exposed to risks within the workplace (Withers v Perry Chain Co Ltd [1961]). The EAT noted that this case predated unfair dismissal and disability discrimination legislation and therefore, was of limited relevance.

A relevant example in this case would be Coxall v Goodyear GB Limited [2002] IRLR 742, where an employee’s job brought him into contact with a spray paint that exacerbated his asthma. He ignored medical advice to cease working with the paint and a month later, collapsed and was diagnosed with occupational asthma caused by irritant fumes at work.

This case also cited Withers v Perry Chain Co Ltd. However, in the Coxall case, the Court of Appeal said that the choice between allowing a willing employee to continue working and dismissing them for their own good had to be made with consideration to the facts of each individual case. In Withers, the risk was small, whereas in Goodyear the risk to Coxall’s health was considerable, just as was the case with Dyer. A risk of dermatitis was not comparable to a near-fatal allergic reaction.

The Court of Appeal said “cases will undoubtedly arise when, despite the employee’s desire to remain at work notwithstanding his recognition of the risk he runs, the employer will nevertheless be under a duty in law to dismiss him for his own good so as to protect him against physical danger.”

What does ‘reasonable’ mean?

With the foregoing in mind, is it possible to find a useful definition of ‘reasonable’ that can help employers going forward?

Adjustments are only required if they are reasonable in all the circumstances. Factors such as the cost and practicability of making an adjustment and the resources available to an employer will influence whether a particular adjustment can be considered reasonable. The ultimate authority on the reasonableness of an adjustment must be the Employment Tribunal, rather than the employer or employee – who may be allowing their own agendas to influence their opinion.

Factors to be considered when deciding whether an adjustment is reasonable could include:

• The effectiveness of the change in avoiding the disadvantage

• its practicality

• the cost that would be incurred

• the size of the organisation and the resources available

The employer should attempt to remove or reduce, as far as reasonably practicable, any substantial disadvantage faced by the disabled employee which would not be faced by a non-disabled person.

Other cases

This case serves as a good example of how far the definition of ‘reasonable’ can be extended. However, there have been other cases over the years which have also given guidance on the issue.

Secretary of State for Work & Pensions v Wilson UKEAT/0289/09/DA (2009), where it was not considered that allowing an agoraphobic employee to work permanently from home was a reasonable adjustment.

Crossland v OCS Group & Anor UKEAT/0340/12/SM, where a diabetic security guard who had refused to patrol outside in case he had a hypoglycaemic episode which could have led to serious injury or even death was found to be unreasonable since that risk would have been the same whether he was working alone inside or patrolling outside.

Pawlicka v St John and Red Cross Defence Medical Welfare Service ET/3102748/2012, where it was confirmed that an employee who went with relatives of deceased individuals to the mortuary for identification purposes could not claim for a failure to make reasonable adjustments based on their fear of dead bodies.

Aitken v The Commissioner of Police of the Metropolis UKEAT/0226/09/ZT, where it was found to be unreasonable for a police officer with violent tendencies to be allowed not to work with either women or members of the public.

Cordell v Foreign & Commonwealth Office UKEAT/0016/11/SM, where hiring lip speaker support for a deaf senior diplomat would have left the employer with an annual bill of £250,000 was not considered reasonable.

Implications

This case presents an extreme and rare example of a situation where no reasonable adjustment could be made.

Employers should look closely at the circumstances of each case and should always consider any practicable adjustments before taking the decision to dismiss a disabled individual on the grounds of capability. It may be that what might be unreasonable in one case is practicable for another employer and their employee.

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