Aerosol and perfume ban not a practicable reasonable adjustment

28 November 2014

The Employment Appeals Tribunal (EAT) have ruled that no reasonable adjustments could have been made for an employee who had a potentially life-threatening sensitivity to aerosols and perfume.

We are grateful to Pinsent Masons for this report on the EAT judgment in the case of Dyer v London Ambulance NHS Trust:

The claimant, Mrs Dyer ("D"), was employed by London Ambulance NHS Trust ("the Trust"), to answer 999 calls in a control room, which was often busy and used by many other employees and members of the public. In 2006, D began to suffer from a severe reaction to an aerosol body spray, which involved her experiencing sweating, shortness of breath and chest pain. Over the next two years, D suffered from five incidents due to aerosol exposure, with the final episode resulting in a near-death experience requiring her to be hospitalised for four days. D signed off from work in March 2009 and did not return following this.

Following medical advice from a leading expert, the Trust established that no reasonable adjustment could be made in the circumstances and in June 2011, dismissed D on the grounds of capability. Following an unsuccessful appeal against this decision, D brought claims for unfair dismissal and disability discrimination. D identified the practice of allowing individuals to spray cosmetic products and wearing perfume in communal areas as the relevant PCP, which caused her to suffer an adverse reaction. D argued that the Trust should have made a reasonable adjustment in relation to this PCP.

The ET dismissed this and concluded that it was neither reasonable nor practicable for a workplace such as the Trust to implement an aerosol and perfume-free policy. The ET noted that such a policy may have been possible to implement in a smaller organisation, taking into account the fact that if an individual inadvertently failed to observe such a policy, this could be fatal. The ET also dismissed the unfair dismissal claim, ruling that the decision to dismiss D was the only decision a reasonable employer could have taken given the circumstances. D appealed.

The EAT dismissed the appeal and ruled that the ET had correctly concluded that there was no reasonable adjustment that could have been made. The EAT noted that the Trust had made attempts to alert employees to the risks that aerosol and perfumes posed D; an approach which did not alleviate the situation. Given the nature and size of the Trust's workplace, the ET was correct in determining that it would not be possible to achieve a perfume and aerosol-free environment. D's desire to return to work did not affect the assessment of whether it was reasonable to make an adjustment, which the EAT established must be viewed objectively.

In her argument, D cited the principle that an employer is not obliged to dismiss an employee if they are exposed to risks within the workplace (Withers v Perry Chain Co Ltd [1961]). The EAT noted that this case predated unfair dismissal and disability discrimination legislation and therefore, was of limited relevance. Moreover, much like other personal injury cases, this was not a principle commonly used in the ET and therefore, the EAT did not deem it proper to adjudicate on such issues.