K Hindmarch v North-East Ambulance NHS Foundation Trust

Under section 20 of the Equality Act 2010, a proposed adjustment or auxiliary aid need not guarantee success. It must, however, have at least a real prospect of avoiding or reducing the disabled person’s substantial disadvantage. Where the tribunal finds that the proposed step has no realistic prospect of making a positive difference, that finding can provide a complete answer to both the duty to make an adjustment and the reasonableness of providing an auxiliary aid.

The issue must be assessed throughout the relevant period and by reference to circumstances then existing. A claim for unfair dismissal remains legally distinct from a discrimination claim, but the same factual considerations may properly lead to the same result if the tribunal separately applies the statutory fairness test.

The claimant, an Ambulance Care Assistant with depression and severe anxiety about contracting Covid-19, sought an FFP3 mask when transporting Covid-positive patients. The respondent provided FFP3 masks to emergency staff undertaking aerosol-generating procedures, but provided scheduled-care drivers with FFP2 masks under national guidance.

The Employment Tribunal dismissed claims for failure to make reasonable adjustments under sections 20–21 of the Equality Act 2010, discrimination arising from disability, and unfair dismissal. It found that an FFP3 mask had no realistic prospect of enabling the claimant to return and maintain attendance, and that dismissal for long-term ill-health absence was fair and justified.

The claimant appealed the reasonable-adjustments decision and the unfair-dismissal decision. The central question was whether the tribunal had erred in treating the ineffectiveness of the proposed auxiliary aid as decisive.

1. Appeal dismissed. The Employment Tribunal made no error of law in dismissing the reasonable-adjustments claim. It correctly identified the claimant’s disadvantage as his anxiety preventing him from working, with consequent exposure to absence management and dismissal. On these facts, separating the anxiety from the resulting inability to work was artificial.

2. The tribunal correctly distinguished the requirements in sections 20(3) and 20(5) of the Equality Act 2010. A claim may nevertheless fail under both provisions for the same factual reason. An employer is not required to take a step, including providing an auxiliary aid, which has no real prospect of avoiding, reducing or overcoming the relevant substantial disadvantage.

3. The real-prospect requirement does not impose a requirement of complete effectiveness or certainty. In many cases, likely effectiveness is one factor among several in assessing reasonableness. However, where the tribunal permissibly finds that the proposed adjustment would do no good at all, that finding is conclusive. Here, the claimant’s fear of Covid was so acute, and the mask’s protection and practical use so limited, that an FFP3 mask would not have enabled a sustainable return to work.

4. The tribunal had assessed the position throughout the period from May 2021 onwards, rather than retrospectively by reference only to the dismissal. Its findings established that the same obstacle existed throughout: the claimant could not say that provision of an FFP3 mask would permit his return, and the mask would not provide the assurance he required.

5. The unfair-dismissal claim was legally distinct and required a separate assessment under sections 94 and 98 of the Employment Rights Act 1996. The tribunal had directed itself correctly, considered proportionality and the claimant’s complaint about the mask, and did not assume that failure of the discrimination claims automatically resolved fairness. Given the common factual issue, it was entitled to reach the same conclusion.

• Employment Appeal Tribunal: Appeal dismissed: [2025] EAT 87.
• Employment Tribunal (Newcastle): On 23 January 2024, dismissed the claims for unfair dismissal, failure to make reasonable adjustments, and discrimination arising from disability. No citation was stated.