K Hindmarch v North-East Ambulance NHS Foundation Trust

This appeal concerned claims of unlawful disability discrimination for failure to make reasonable adjustments under sections 20(3) and 20(5) of the Equality Act 2010 and a claim of unfair dismissal. The central issue was whether the employer was required reasonably to provide an auxiliary aid — an FFP3 mask — to a scheduled ambulance driver whose anxiety about Covid-19 prevented him returning to work.

The Employment Appeal Tribunal held that an adjustment which has no real prospect of removing the substantial disadvantage need not be provided. Applying the statutory tests in sections 20(3) and 20(5) the EAT concluded the Employment Tribunal had been entitled to find the FFP3 mask would not realistically have enabled the claimant to return to work and therefore the duty to provide that auxiliary aid was not engaged. The EAT also held that the ET properly applied the legal test for unfair dismissal (section 98 ERA 1996) and proportionately balanced the employer’s legitimate aims against the discriminatory effect, so the dismissal was fair.

Background and parties: The claimant was employed as a scheduled ambulance driver by the respondent Trust. He suffered from anxiety and depression exacerbated by the Covid pandemic and asked to be supplied with an FFP3 mask for transporting Covid-positive patients. The Trust supplied FFP3 masks to emergency crews only and offered FFP2 for scheduled staff in line with national guidance. The claimant did not return to work and was dismissed on ill-health/capability grounds after long-term absence.

Procedural posture: The Employment Tribunal dismissed claims for failure to make reasonable adjustments and unfair dismissal. The claimant appealed to the EAT.

Nature of claim and issues:

• Claim under sections 20(3) and 20(5) Equality Act 2010 that refusal to provide an FFP3 mask was a failure to make reasonable adjustments (auxiliary aid / PCP arguments).
• Unfair dismissal claim under the Employment Rights Act 1996 arising from long-term incapacity and the absence management process.

Court’s reasoning: The EAT accepted the ET’s factual findings and held the ET had correctly applied the law. Key points of reasoning were:

• The ET correctly treated the core question as whether the FFP3 mask had a real prospect of alleviating the claimant’s anxiety sufficiently to enable a sustainable return to work. If the auxiliary aid has no real prospect of removing the substantial disadvantage, the duty to provide it is not engaged.
• On the evidence the ET was entitled to find there was no realistic prospect that provision of an FFP3 mask — to be worn only in certain patient encounters and with practical limitations (fit, driving, decontamination, glasses, beard, limited wear time) — would have enabled the claimant to resume and maintain attendance at work.
• The ET did not conflate statutory tests for sections 20(3) and 20(5); it applied both and reached a single factual conclusion that defeated the claim under either limb. The ET also correctly considered the entire relevant period rather than only the dismissal date.
• The unfair dismissal complaint was considered under the appropriate statutory test and by reference to proportionality; the ET reasonably concluded dismissal was within a range of reasonable responses in light of the claimant’s prolonged absence and the employer’s operational needs.

Conclusion: The EAT dismissed the appeal, upholding the ET’s findings on reasonable adjustments and unfair dismissal.

Appeal dismissed. The EAT held that the Employment Tribunal had correctly applied the law: an employer is not required to provide an auxiliary aid which has no real prospect of removing the substantial disadvantage under sections 20(3) and 20(5) Equality Act 2010, and the Tribunal was entitled on the facts to conclude the FFP3 mask would not realistically have enabled the claimant to return to work. The ET also correctly applied the unfair dismissal test and proportionately balanced employer and employee interests, so the dismissal was fair.

Appeal from the Employment Tribunal, Newcastle (judgment entered 23 January 2024) which dismissed claims for failure to make reasonable adjustments and unfair dismissal. The Employment Appeal Tribunal dismissed the claimant's appeal ([2025] EAT 87).