TUPE: No service provision change where client changed
In this case the EAT considered whether there had been a service provision change where there had been a change in the underlying client…
Published 17 December 2014
In this case, in which we acted for the employer, the EAT agreed with an employment tribunal that no adjustments could reasonably be made to the workplace for an employee who answered 999 calls in a busy control room, and who sometimes had a potentially life-threatening reaction to aerosols and perfume.
Mrs Dyer was employed by London Ambulance NHS Trust (LAS) to answer and deal with 999 calls in the busiest control room in the world. This was frequented by many other employees and members of the public. In 2006, seven years after starting work for the LAS, she developed a severe reaction to an aerosol body spray. She experienced sweating, shortness of breath and chest pain when exposed to it. Further episodes occurred in 2008 and 2009 of increasing severity. LAS took steps to ask staff not to use aerosols or liquid sprays within the control room circulating specific and emphatic written warnings to employees. However, a final episode occurred resulting in a near-death experience requiring hospitalisation for four days. Mrs Dyer went off work from March 2009, never to return.
LAS obtained medical advice from the leading expert in the country and discussed what reasonable adjustments might be made, with her and her trade union representative, to allow her to safely continue in employment. The employment tribunal noted that LAS could not have gone to more trouble. However, given the very serious nature of Mrs Dyer's reactions, it concluded that no reasonable adjustment could be made. Mrs Dyer was dismissed on capability grounds in June 2011.
After an unsuccessful internal appeal Mrs Dyer brought claims in the employment tribunal for unfair dismissal and disability discrimination, in particular a failure to make reasonable adjustments. The arrangement which she identified as putting her at a disadvantage in the workplace was the practice of allowing people to spray cosmetic products in communal working areas. She argued that the employer should have made a reasonable adjustment of excluding perfumes and aerosols from the workplace.
An employment tribunal concluded that the adjustment sought was not practicable, noting that it might have been possible for a small employer with small or restricted premises. It had regard to the fact that it could be fatal if someone failed, inadvertently, to observe the policy. As such the adjustment sought was not reasonable, and this was a rare case where no reasonable adjustments could be made to overcome the disadvantage suffered. With regard to the unfair dismissal claim, the employment tribunal could not fault the employer's approach and found that it made the only decision a reasonable employer could in the circumstances.
Mrs Dyer appealed on various grounds. A key ground of appeal was that LAS had adopted too absolutist an approach to its health and safety obligations, regarding itself as bound to guarantee Mrs Dyer's health and safety. The EAT rejected her appeal stating that an absolutist approach had not been adopted and reiterating that the reasonableness of the adjustment sought must be viewed objectively, and not with a view to satisfying the employee's wish to remain in employment despite the risks.
This case is very fact specific. It is not a green light for employers to dismiss disabled employees on the basis that no reasonable adjustments can be made. Indeed, the EAT noted, that adopting a policy of banning certain substances may be reasonable and practicable in some workplaces, but not in one of this size and nature. Furthermore here LAS had done all they could to understand the medical condition, and take steps to prevent Mrs Dyer suffering disadvantage as a result of it, before coming to the conclusion that no adjustment could be made. Doing this work paid dividends when defending the tribunal claims.