Providing an aerosol and perfume free workplace is not a reasonable adjustment

2014-11-24 Jennifer Renney-Butland posted:

In the recent case of Dyer v London Ambulance NHS Trust, the Employment Appeals Tribunal considered whether any reasonable adjustment could have been made for an employee who had a potentially life-threatening sensitivity to cosmetics.

Mrs Dyer was employed by London Ambulance NHS Trust to answer and deal with 999 calls in a control room. In 2006, 7 years after starting work for the Trust, she developed a severe reaction to an aerosol body spray. She experienced sweating, shortness of breath and chest pain when exposed to it. She went off work in 2009, never to return.

The Trust obtained medical advice from the leading expert in the country and discussed what reasonable adjustments might be made. It concluded that no reasonable adjustment could be made in the circumstances and dismissed Mrs Dyer on capability grounds in 2011. Mrs Dyer appealed, unsuccessfully, against the decision.

Mrs Dyer brought unsuccessful claims in the employment tribunal for unfair dismissal and disability discrimination. She then pursued with the argument that the employer should have made a reasonable adjustment to her working conditions.

An employment tribunal concluded that it was not reasonable or practicable to implement and enforce an aerosol and perfume-free policy in a workplace such as the Trust, where employees are answering 999 calls in a busy control room.

Where a provision, criterion or practice puts someone with a disability at a substantial disadvantage to non-disabled people, an employer has a duty to make reasonable adjustments. The reasonableness of the adjustment must be judged, among other things, by whether it would have the effect of ameliorating the disadvantage suffered.

This is an extreme example of a situation where no adjustment could reasonably be made. Effectively, the employer needed to be able to eliminate the risks of the employee being exposed to a life-threatening condition in order for her to be able to return to work. Adopting a policy of banning certain substances may be reasonable and practicable in some workplaces, but not in one of this size and nature. Presumably, this employee could not have worked from home.

For more information about reasonable adjustments in the workplace, contact Renney and Co Employment Solicitors today for fast effective relief on 01225 632240 or at info@renneyandco.com.

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