Providing a workplace free from aerosols and perfume was not reasonable

To bring a claim for disability discrimination, the claimant must be able to show that they have a disability under the Equality Act 2010. Some conditions, such as blindness, cancer, HIV and MS are expressly considered as deemed disabilities.

Where there is no deemed disability the statutory definition of disability will apply:

A person (P) has a disability if:

> has a physical or mental impairment, and

> the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

(Some conditions such as addiction to alcohol or nicotine do not constitute a disability.)

The duty of an employer to make reasonable adjustments arises where a disabled person is at a ‘substantial disadvantage’ due to:

> the employer’s provision criterion or practice (such as policies and rules);

> a physical feature of the employer’s premises (including the building itself and furnishings); or

> the employer’s failure to provide an auxiliary aid.

An employer will be under such a duty if they know or ought reasonably to know that the individual is disabled and likely to be at a substantial disadvantage due to their disability.

In the recent case of Dyer v London Ambulance NHS Trust, an employee, who worked for the London Ambulance NHS Trust answering 999 calls in a room with other employees and often members of the public, developed an unusual sensitivity to aerosol sprays.

There were five incidents at work where the employee suffered symptoms similar to anaphylactic shock and was hospitalised.

The last incident was a near death experience. The employee was dismissed on capability grounds and brought a disability discrimination claim for failure to make reasonable adjustments, in failing to prevent the spraying of aerosols or perfumes in the office.

The Employment Appeal Tribunal held that there was no reasonable adjustment that could have been made, as it would not have been possible for such a large organisation to achieve a perfume and aerosol free environment.

This is an example of a situation where no reasonable adjustment could be made. However the Employment Appeal Tribunal commented that it will be rare for such a finding to be made.

Two other cases demonstrate that dismissal is not the only disadvantage that a disabled employee may suffer in redundancy.

In London Borough of Southward v Charles, the employee suffered from a condition where he woke up at night, paralysed, leading to him suffering from depression. He was unable to attend interviews for alternative positions and was made redundant. It was held that the failure to arrange an alternative to an interview was a failure to make a reasonable adjustment.

In Dominique v Toll Global Forwarding Ltd, the employee suffered physical and cognitive impairments following a stroke. The redundancy selection criteria included productivity and accuracy and it was held that failure to make reasonable adjustments to the redundancy criteria led to a lower score which placed the employee at a substantial disadvantage.

We will be looking at disability discrimination in greater detail at our Employment Law Workshop in our Luton office on 13 January and 3 February 2015 and in our St Albans office on 20 January and 10 February 2015 at 4pm.

Alec Colson is a Partner in the Employment Law Department at Taylor Walton LLP, which has offices in Luton, Harpenden and St Albans and provides effective legal solutions to businesses and individuals across Bedfordshire, Hertfordshire and the South East. Alec can be contacted on 01582 731161 or email [email protected].

The information in this article was, at the time of publication, believed to be a correct statement of the law. However, readers should seek specific legal advice on matters arising, and no responsibility can be accepted for action taken solely in reliance upon such information.