When is an adjustment reasonable? Lessons from Hindmarch

In the recent case of Hindmarch v North East Ambulance NHS Foundation Trust [2025] EAT 87, the Employment Appeal Tribunal (“EAT”) looked at the question of whether an adjustment requested by a disabled employee will be reasonable if it does not alleviate or avoid the substantial disadvantage faced by them in the workplace.

Mr Hindmarch, who suffered from severe anxiety, worked as a “non-emergency” ambulance driver during the Covid-19 pandemic. He became increasingly anxious about contracting Covid, and felt that the type of face mask given to him to wear whilst on his shifts was not robust enough (particularly when compared to the type of mask given to emergency ambulance drivers). This led to him not feeling able to attend work, and going on long-term sick leave. When he was subsequently dismissed, he claimed that the North East Ambulance NHS Foundation Trust (“Trust”) had failed to make reasonable adjustments for him.

The EAT found that, though the Trust was under a duty to make reasonable adjustments – i.e., such adjustments as may be reasonable to alleviate or avoid the substantial disadvantage that Mr Hindmarch faced as a result of his disability (i.e. not feeling able to return to work) – in this instance it had not failed in its duty. This was because the evidence showed that provision of an alternative face mask would, in reality, have made no difference; Mr Hindmarch would likely still not have felt able to return to work even if it had been provided to him. Therefore, because the adjustment would not have addressed the disadvantage suffered by Mr Hindmarch, it was not reasonable to require the Trust to make it.

We explore the judgment in more detail below.

What were the facts in the Hindmarch case?

Mr Hindmarch was employed as a care assistant by the North-East Ambulance NHS Foundation Trust. As part of his duties, he was required to drive an ambulance to provide scheduled care to patients. He was classed as a “non-emergency” ambulance driver.

During the Covid-19 pandemic, the Trust provided non-emergency ambulance drivers like Mr Hindmarch with “FFP2” face masks, in accordance with the national guidelines in place at the time. It also provided emergency ambulance drivers with “FFP3” masks; which were more robust, and designed for “aerosol generating procedures” like first aid and resuscitation.

Mr Hindmarch suffered from severe anxiety, and was asthmatic. During the pandemic, his mental health deteriorated, and he became very concerned about becoming infected by the virus, both because of his asthma and because he wanted to protect his granddaughter (who was in his family “bubble”).

He raised concerns with the Trust about the fact that he was required to transport Covid positive patients as part of his role, with only an FFP2 mask, and asked to be provided with a more robust FFP3 mask. The Trust refused to provide him with the latter (citing national guidance as justification), but did temporarily allow him to carry out non-patient facing work as an alternative.

After a while, Mr Hindmarch began a phased return to his driving role. During this time, when asked to transport a Covid positive patient on one of his shifts, he had a panic attack and went home. He subsequently remained off work on long-term sick leave.

During its communications with him, the Trust explained to Mr Hindmarch that an FFP3 mask would not completely remove the risk of him contracting Covid, and could not in any event be used for a full shift or extended periods of driving. Mr Hindmarch also did not confirm that he would be able to return to his role if that mask was provided to him. The Trust therefore did not believe that the provision of an FFP3 mask would alleviate Mr Hindmarch’s concerns, or facilitate his return to work.

Mr Hindmarch raised a grievance, but this was not upheld. The Trust believed that he had become fixated on being given an FFP3 face mask when, in fact, this would not provide him with the level of assurance needed in order to enable him to return to work. It therefore proposed that Mr Hindmarch return to work in a different role and, in parallel, look at alternative masks that would alleviate his concerns. However, a subsequent occupational health report found that Mr Hindmarch was not fit to return to work in any capacity, and no timeframe for a return could be given.

Mr Hindmarch was subsequently dismissed on the ground of capability, due to ill-health. He brought Employment Tribunal claims for failure to make reasonable adjustments, amongst others.

What was the Employment Tribunal’s decision?

The Employment Tribunal (“ET”) dismissed Mr Hindmarch’s claims.

It agreed that his anxiety disorder amounted to a disability. It also agreed that the Trust was under a duty (pursuant to the Equality Act 2010 (“EqA”)) – in circumstances where a provision, criterion, practice (“PCP”) or lack of auxiliary aid implemented by the Trust placed Mr Hindmarch at a substantial disadvantage in the workplace as a result of his disability – to take such steps, or make such adjustments, as would be reasonable to avoid the disadvantage. It found that the particular substantial disadvantage faced by Mr Hindmarch was that, without the FFP3 mask, he would be unable to work.

The ET also flagged that an adjustment would only be reasonable if it had a real prospect of alleviating or removing that substantial disadvantage.

However, it went on to find that the Trust had not failed in its duty to make reasonable adjustments in this instance. In its view, there was no realistic possibility that provision of an FFP3 mask would have led to Mr Hindmarch returning to work, given his acute anxiety about Covid. It would have made no difference, and would not have avoided the substantial disadvantage Mr Hindmarch faced. It would not, therefore, have been a reasonable adjustment to make.

The ET commented that the Trust had, in any event, made reasonable adjustments – by offering Mr Hindmarch the opportunity to work in a non-patient facing role, and allowing him a phased return to his normal role.

Mr Hindmarch appealed to the EAT.

What was the Employment Appeal Tribunal’s decision?

The EAT dismissed the appeal.

It found that the ET had not erred in the way it had characterised Mr Hindmarch’s substantial disadvantage.

The ET had been entitled to conclude that providing the FFP3 mask would have made no difference; there was no realistic possibility that Mr Hindmarch would have returned to work even if it had been provided; it would not have alleviated the substantial disadvantage he faced and was not, therefore, a reasonable adjustment. The real issue for Mr Hindmarch was the psychological effects of the fear of catching Covid; the provision of an FFP3 mask would not solve this.

The EAT confirmed that, if an adjustment would have no real chance of avoiding or reducing the disadvantage faced, the employer is under no duty to make that adjustment.

The EAT commented that, in some cases, an adjustment may be reasonable where it helps to alleviate some, but not all, of the substantial disadvantage faced; however, this was not one of those cases. In this case, the adjustment would not have helped at all.

Key takeaways for employers

Though it may seem obvious that an adjustment will not be reasonable if it does not alleviate or remove the substantial disadvantage faced by an employee in the workplace as a result of their disability, this is a key issue which can, and often does, get overlooked by both employers and employees alike.

It is important to remember that the duty to make reasonable adjustments under the EqA arises in circumstances where:

• an employer has a provision, criteria or practice (“PCP”), or lack of auxiliary aid, and
• this places employees with a particular disability at a substantial (i.e. more than minor or trivial) disadvantage in the workplace, in comparison to employees who are not disabled;
• in which case, the employer is under an obligation to take such steps as it is reasonable to have to take to avoid the substantial disadvantage.

All of the circumstances outlined above must be met, in order for the duty to make reasonable adjustments to be engaged and fulfilled. In the Hindmarch case, it was the final point – whether the adjustments would avoid the substantial disadvantage, and therefore be reasonable – which was in dispute.

The EAT commented that “it is clear… that if the steps that it is suggested that [an employer] should have taken by way of reasonable adjustment… would have no real chance of avoiding or reducing the disadvantage, then the [employer] is under no duty to take those steps. This is no more than common sense. It cannot be reasonable to require [an employer] to make an adjustment that has no prospect of achieving the desired effect… no real prospect of making a positive difference.”

This is consistent with the Equality and Human Rights Commission’s Statutory Code of Practice on Employment, which states that:

• whether an adjustment is reasonable will depend on all the circumstances of the case, and
• a factor which might be taken into account is whether the adjustment would be effective in preventing the substantive disadvantage faced.

The Hindmarch case, whilst not establishing or espousing any particularly novel point, is nonetheless helpful clarification, and a useful reminder, that, in order to be reasonable, an adjustment must have a real prospect of alleviating or avoiding the substantial disadvantage that an employee faces in the workplace as a result of their disability.

The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.