Dismissal of Disabled Employee Lawful as No Adjustments Reasonable

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Posted on 04 Dec 2014

The employer had been entitled to dismiss an employee with a life-threatening allergy to aerosol body spray. There were no reasonable adjustments it could have made.

D was employed by the London Ambulance NHS Trust answering and dealing with 999 calls in a control centre. The control centre was frequented by many other employees and members of the public. After seven years working there, she developed a severe reaction to an aerosol body spray. There were five incidents of increasing severity, and the last episode resulted in a near death experience requiring her to be hospitalised for four days. She went off work and never returned.

The Trust obtained expert medical advice and discussed what reasonable adjustments might be made. However, it concluded that no reasonable adjustments could be made and dismissed D on grounds of capability. She claimed unfair dismissal and disability discrimination.

The employment tribunal rejected her claims and she appealed to the EAT. The EAT dismissed her appeal. The tribunal had been entitled to conclude that there was no reasonable adjustment that could have been made. The Tribunal had to consider whether, if the steps suggested by the claimant (displaying notices, giving advice and enforcing a policy of no perfumes or aerosols as far as it could) had been taken , they would have had the effect of avoiding her dismissal. The tribunal had been entitled to conclude that they would not, bearing in mind that the employer had previously alerted employees to the risk posed to D by aerosols and perfumes and this had not been effective. Whilst it will be relatively rare that no reasonable adjustment can be made, this was such a case. The strength of the employee’s desire to return to work was not relevant to the question of whether it was reasonable to make an adjustment as this must be viewed objectively.

When considering adjustments, employers should consider each case carefully in the context of their particular workplace. The EAT agreed that it might have been a reasonable adjustment to impose a ban on aerosol cosmetics in a small workforce, but it was not reasonable for this employer where the workforce was large and the workplace was visited by members of the public. It might also have been a reasonable adjustment to have allowed the employee to work from home, but presumably that was not possible for this particular role.

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