Will an adjustment be successful? 

The Employment Appeal Tribunal (EAT) has considered whether an employer had failed to make reasonable adjustments for a disabled employee when it refused to supply him with a certain type of facemask during the COVID-19 pandemic. 

Hindmarch v North East Ambulance NHS Foundation Trust [2025] EAT 87 

Facts of the case 

Mr Hindmarch, a non-emergency ambulance driver employed by the North East Ambulance NHS Foundation Trust, suffered from anxiety and depression, conditions exacerbated by the COVID-19 pandemic. He requested to be provided with an FFP3 mask – typically reserved for emergency ambulance staff performing aerosol-generating procedures (AGPs) – due to his acute fear of contracting COVID-19. The Trust declined, offering instead the standard FFP2 mask in line with national guidance for non-emergency staff. 

Mr Hindmarch refused to return to patient-facing duties without the FFP3 mask and was eventually dismissed on grounds of ill health following a prolonged period of absence. He brought claims for failure to make reasonable adjustments and unfair dismissal. 

The employment tribunal dismissed both claims. It found that the Trust had not failed in its duty to make reasonable adjustments. Although Mr Hindmarch was disabled under the Equality Act 2010, the tribunal concluded that providing an FFP3 mask would not have realistically enabled him to return to work. It would not have provided him with complete protection against catching COVID-19 and could not be used for a full shift or for extended periods of driving. Mr Hindmarch’s anxiety was so severe that even with the mask, he was unlikely to resume his duties.  

The tribunal was satisfied that the Trust had acted reasonably in following national PPE guidance and had explored alternative roles and adjustments, including offering work in the stores and phased returns. In addition, the tribunal accepted that the Trust had followed proper capability procedures prior to Mr Hindmarch’s dismissal.  

EAT decision 

The EAT upheld the tribunal’s decision, rejecting the claimant’s appeal.  

The tribunal had correctly applied the statutory tests under the Equality Act 2010 and was entitled to conclude that the auxiliary aid requested (the FFP3 mask) would not have alleviated the disadvantage caused to Mr Hindmarch. If there is no real prospect of an adjustment helping to avoid or reduce the disadvantage, an employer is under no duty to make the adjustment. This is supported by previous case law as well as being consistent with the EHRC Code of Practice. 

The tribunal had also properly considered the fairness of the dismissal, independently of its assessment of the discrimination claim. The tribunal had appropriately weighed the employer’s legitimate aims (e.g. service delivery and safety) against the impact on the employee, applying a proportionality test akin to that used in discrimination claims. 

The Birketts view 

It is important for employers to note that they are not required to make adjustments that have no real prospect of alleviating the disadvantage caused to a disabled employee. However, this is a relatively high bar: an employee does not have to show that the reasonable adjustment proposed would be fully effective to alleviate the disadvantage, only that there is a chance of it being successful. It is important for an employer to be able to demonstrate why, preferably being able to show medical (or other) evidence for why an adjustment has no real prospect of working. 

In this case, the tribunal took into account the fact that the employer had been following national guidance on the issuing of masks. In addition, offering the employee alternative roles or a phased return helped to demonstrate the employer’s reasonableness in trying to alleviate his concerns and encourage him back to work. 

The decision reinforces that the duty to make reasonable adjustments is context-specific and must be assessed based on the likely effectiveness of the proposed adjustment.