The Equality Act 2010 requires employers to make reasonable workplace adjustments to help disabled job applicants and employees overcome any substantial disadvantage they might otherwise experience (compared to employees who are not disabled) if the adjustment were not made for them. It’s about creating a level playing field, as far as possible. However, as a recent employment tribunal case demonstrates, the law provides that if there is no real prospect of an adjustment helping to avoid or reduce the disadvantage to the employee as a result of their disability, then the employer is not obliged to make the adjustment.
In this employment tribunal case, the employee was a non-emergency ambulance driver. He was disabled, with a history of low mood and depression, and his stress and anxiety increased due to the impact of the COVID-19 pandemic. During the pandemic, the employee was signed off work due to sickness for a period and refused to return to work unless his employer provided him with an FFP3 mask (instead of the FFP2 masks which were given to non-emergency staff). When asked whether, and if so when, he would be able to return to work if given an FFP3 mask, the employee was equivocal in his response. His employer refused to provide an FFP3 mask on the basis of national guidance and the fact that the mask would not provide him with full protection, nor would it address the underlying extreme anxiety he had related to the fear of contracting COVID-19. His employer offered him other adjustments which the employee refused, including an alternative role where he would not have been working face to face with patients.
The employee was dismissed on grounds of capability due to ill health. He brought claims in the employment tribunal including unfair dismissal and failure to make reasonable adjustments. The Employment Appeal Tribunal (EAT) rejected the employee’s appeal, upholding the original employment tribunal’s decision that the employer’s failure to provide an FFP3 mask -rather than the standard FFP2 mask issued to non-emergency ambulance drivers -during the COVID-19 pandemic, to ease the employee’s heightened anxiety about transporting COVID-positive patients, did not constitute a failure to make reasonable adjustments on account of the employee’s disability.
Based on the evidence, the tribunal was entitled to conclude that providing the FFP3 mask would have made no difference to the likelihood of the employee returning to work.
When considering what, if any, workplace adjustments are required for disabled staff, as well as speaking to the employee, employers will usually need to engage with occupational health, or obtain a medical report from the employee’s GP to understand the effect of the employee’s medical condition on their ability to perform their role and what adjustments could be put in place to realistically avoid those disadvantages. If there is no real prospect that suggested adjustments will help remove or reduce the disadvantages, there is no duty on an employer to make them. However, an employer refusing to make an adjustment for this reason should ensure they have clear evidence (usually, including medical evidence) to support their decision not to make a particular adjustment and keep copies of any correspondence and medical evidence to support their view.
How does occupational health differ from a GP’s report?
Occupational health is a type of medical service for employers which aims to find out what impact work has on the health of their employees with a view to making sure that individuals are fit to undertake their work, both physically and mentally; as well as advising on any required workplace adjustments.
GPs generally do not have the time or occupational health expertise to produce a risk assessment that includes important information like reasonable adjustments. On the FSB Legal Advice Line, we have had experience of GPs sending employees back to their employer to request a specialist Occupational Health assessment instead.
From a time perspective, it is important, when dealing with a health condition, to have a timely intervention and reports from busy NHS clinicians may take many weeks or even months to complete.
FSB members have access to an occupational health service on a fee-paying basis. To find out more or to access the service visit: https://healthyshoots.com/fsb-occupational-health/
FSB members must take advice via the FSB Legal Advice Line prior to dismissing any employee.