What happened?

In Dyer v London Ambulance NHS Trust, the Employment Appeal Tribunal (EAT) decided that no reasonable adjustment could have been made for an employee who had a potentially life-threatening sensitivity to cosmetics.

The employee, Mrs Dyer, answered emergency ambulance calls in a control room which was shared with many other employees. Mrs Dyer developed a severe reaction when exposed to aerosol body spray or perfume. This reaction led to five incidents each increasing in severity until her last episode resulted in a near-death experience requiring hospitalisation for four days. Following this final episode Mrs Dyer never returned to work. The Trust obtained medical advice from a leading expert and considered what reasonable adjustments could be made to help Mrs Dyer. It concluded that in these specific circumstances no adjustment could be made and so dismissed Mrs Dyer on capability grounds.

Mrs Dyer brought claims for unfair dismissal and disability discrimination identifying the provision, criterion or practice (PCP) of allowing people to spray cosmetic products in communal working areas. Mrs Dyer argued that her employer should have made a reasonable adjustment to this PCP by implementing an aerosol and perfume-free policy. Both the employment tribunal and the EAT decided that it might be possible to achieve a perfume and aerosol free environment in a small, compact workforce, but not in a working environment such as this. This was one of those rare cases where no reasonable adjustments could be made.

What does this mean?

This case demonstrates that there are some rare situations in which no reasonable adjustment can be made to facilitate the attendance at work of an employee who may be disabled. The Trust would have had to enforce an aerosol and perfume-free workplace which was deemed to be unreasonable and impractical in such a large workplace. It was also observed that a failure to properly enforce this policy could have had potentially fatal consequences, and a previous attempt to alert employees to Mrs Dyer’s condition had not resolved the situation.

What should we do?

Employers should always logically and methodically consider whether any reasonable adjustment could be made to a PCP that could potentially discriminate against an employee. In this case the Trust sought medical advice from the leading expert in the country on Mrs Dyer’s condition. When deciding if an adjustment is reasonable an employer should consider factors such as the cost of the adjustment in light of their financial resources, the affect of the adjustment on improving the employee’s disadvantage and any disruption that the adjustment may cause to the business.