Hindmarch v North-East Ambulance NHS
Hindmarch v North-East Ambulance NHS [2025] EAT 87
Facts
Mr K Hindmarch (the Claimant), an Ambulance Care Assistant (non-emergency ambulance driver), appealed against the Employment Tribunal (ET)'s dismissal of his claims for unfair dismissal and unlawful disability discrimination. The central issue revolved around the Respondent's refusal to provide him with an FFP3 face mask for transporting Covid-positive patients.
The Claimant suffered from poor mental health, including extreme anxiety and a particular fear of catching Covid, exacerbated by the pandemic, and had an underlying asthmatic condition, requiring him to "shield" in 2020. He also expressed anxiety about protecting his granddaughter.
While emergency ambulance drivers were provided with FFP3 masks for Aerosol Generating Procedures (AGPs), non-emergency drivers like the Claimant were provided with FFP2 masks. The Claimant refused to transport Covid-positive patients without an FFP3 mask, stating it would alleviate his anxiety and enable him to return to work, regardless of whether it offered 100% physical protection from the virus. However, he never unequivocally stated that he would be able to return to work if provided with the FFP3 mask. After a panic attack in May 2021, he did not return to work.
The Respondent's decision not to provide the FFP3 mask was based on several reasons, not including cost or availability:
National Guidance specified FFP2 masks for scheduled ambulance staff and FFP3 masks only for emergency staff performing AGPs.
The Respondent believed the FFP3 mask would not provide complete protection from Covid for the Claimant. Patients could be asymptomatic, and the mask's effectiveness was limited by wear time (up to three hours), impractical decontamination, and the fact it could not be worn while driving (the Claimant was a single-person crew). His glasses also steamed up, and his beard might impede the seal.
Given these limitations and the Claimant's severe anxiety, the Respondent did not believe the FFP3 mask would assuage his concerns or guarantee his return to work.
The Claimant was eventually dismissed on 21 September 2022, on the ground of capability due to ill-health/long-term absence, following a series of absence management reviews and grievance appeals. The ET found the Claimant was a disabled person and that the Respondent knew this.
Employment Tribunal Held
The ET dismissed the Claimant's complaint of failure to make reasonable adjustments under sections 20(3) and 20(5) of the Equality Act 2010. It found that the Claimant's anxiety about Covid was so acute that, even if he had been given an FFP3 mask, there would have been no real prospect that he would have returned to work. The ET also dismissed the unfair dismissal claim, concluding the dismissal was proportionate and justified given the impact of his absence on the Respondent's services.
EAT Held
The Employment Appeal Tribunal (EAT) dismissed Mr Hindmarch's appeal against both the ET's finding that there had been no failure to make reasonable adjustments and the finding that he was not unfairly dismissed.
The EAT affirmed the ET's approach, finding no misdirection of law. The key points of the EAT's judgment included:
Reasonable Adjustments - "Real Prospect" Test: The EAT upheld the ET's application of the principle that a duty to make an adjustment or provide an auxiliary aid only arises if the adjustment would have a real prospect of removing the substantial disadvantage. It cannot be reasonable to require a party to make an adjustment that has no prospect of achieving the desired effect. This principle applies to both the "provision, criterion or practice" (PCP) duty under section 20(3) and the "auxiliary aid" duty under section 20(5).
Characterisation of Disadvantage - The EAT found no fundamental error in the ET's characterisation of the Claimant's substantial disadvantage as his inability to attend work due to heightened anxiety, leading to potential dismissal. This was seen as a distinction without a difference from his pleaded case focusing on stress and anxiety.
Application of Section 20(5) - The EAT rejected the argument that the ET mixed up sections 20(3) and 20(5). While the statutory requirements are distinct, the EAT noted that in this case, the Claimant's claim failed for the same reason under both sections: the auxiliary aid (FFP3 mask) stood no chance of removing the substantial disadvantage.
Futility as a Conclusive Factor - The EAT agreed that where the provision of an FFP3 mask would have had no realistic prospect of enabling the Claimant to return to work, this was a complete answer to the claim that it was a reasonable adjustment.
Timeframe of Assessment - The EAT confirmed that the ET correctly considered the Respondent's duties throughout the period from May 2021 onwards, not just at the point of dismissal, as the Claimant's position did not significantly change.
Unfair Dismissal - The EAT upheld the ET's finding of fair dismissal, noting that the ET had directed itself correctly on the law and applied a "levelled up" proportionality test, essentially determining that the dismissal was justified given the impact of the long-term absence and the finding that the FFP3 mask would not have enabled his return. The unfair dismissal claim largely stood or fell on the same issue as the discrimination claims.
Comment
This judgment provides important clarity on the limits of an employer's duty to make reasonable adjustments under the Equality Act 2010, particularly concerning the provision of auxiliary aids. It firmly establishes that if a proposed adjustment, including an auxiliary aid like an FFP3 mask, has no real prospect of alleviating the disabled person's substantial disadvantage or enabling them to return to work, then it is not reasonable to require the employer to implement it. This aligns with common sense and is supported by Supreme Court and EAT precedents.
The case underscores that while an adjustment does not need to guarantee success or completely eradicate the disadvantage to be considered reasonable, there must be a demonstrable likelihood or "real prospect" of a positive difference. Here, despite the Claimant's belief that the mask would ease his anxiety, the ET was entitled to conclude, based on the evidence, that his fear was so profound that the mask's provision would not, in reality, have led to his return to work. The objective assessment of effectiveness is paramount.
Furthermore, the case reinforces the close relationship between reasonable adjustments claims and unfair dismissal claims in cases where the core factual issue is identical. The outcome on the reasonable adjustment issue, specifically the futility of the requested mask, directly impacted the finding of fair dismissal, as the employer was not deemed to have acted unreasonably in dismissing an employee whose prolonged absence would not have been resolved by the proposed adjustment. This judgment provides useful guidance for employers and tribunals grappling with complex reasonable adjustment requests where the efficacy of the proposed adjustment is genuinely in doubt.
