Posted on Jan 10, 2018 in Employment by Amy Jones
Is banning aerosols and perfume in the workplace a reasonable adjustment? Employment Solicitor, Amy Jones looks at the recent case of Dyer v London Ambulance NHS Trust.
As you may know, where a provision, criterion or practice (PCP) puts someone with a disability at a substantial disadvantage to non-disabled people, an employer has a duty to make reasonable adjustments. Whether an adjustment is reasonable will be judged, among other things, on whether it would have the effect of lessening the disadvantage suffered. In the case of Dyer v London Ambulance NHS Trust, the EAT considered whether introducing an aerosol and perfume-free policy was a reasonable adjustment.
Mrs Dyer (D) was employed by London Ambulance NHS Trust (the Trust) to answer 999 calls. She worked in a control room with many other employees and also members of the public. In 2006, she developed a severe reaction to an aerosol body spray and prior to going on long-term sick in March 2009, she suffered 5 allergic episodes, the last of which was near-fatal. The Trust obtained medical advice and concluded that no reasonable adjustment could be made in the circumstances to prevent D being exposed to aerosol sprays or perfumes. D was dismissed on capability grounds in June 2011, having not been at work since March 2009.
D brought claims for unfair dismissal and disability discrimination. The PCP she identified was the practice of allowing people to spray cosmetic products in communal working areas. However, there was the suggestion that mere wearing of perfume might cause an adverse reaction.
The ET concluded that whilst it might have been possible for an employer with small or restricted premises to enforce an aerosol and perfume-free policy, it was not reasonable or practicable to implement such a policy in the Trust. The ET had regard to the fact that it could be fatal if someone failed to observe such a policy. With regard to the unfair dismissal claim, the ET found that the Trust has made the only decision a reasonable employer could in the circumstances. D appealed.
The EAT dismissed the appeal, finding that the ET had been entitled to conclude that there was no reasonable adjustment that could have been made in the circumstances. It was particularly significant that the Trust had previously attempted to alert employees to the risks that aerosol and perfumes posed to D and this had not remedied the situation.
This is an unusual example of a situation where no adjustment could reasonably be made. In most situations there will be some form of reasonable adjustment available. In a smaller workplace it might have been possible to eliminate the risks of the employee being exposed to a life-threatening condition and, therefore, employers should always consider whether an adjustment is reasonable in the context of the employee's and the employer's individual circumstances. Employers should also consider other options if these are practical, e.g. working from home.
If you have any queries about long-term absence and the obligation to make reasonable adjustments, please contact one of the employment team.