I recently read a law firm’s summary of the decision in Hindmarch -v- North-East Ambulance NHS Foundation Trust [2025] EAT 87 to the effect that the duty to make adjustments had been relaxed so that a claim could be defeated if the tribunal finds the adjustment was unlikely to be successful.
That caused a double take on my part because that would be a significant departure as previous authorities had been clear that the test was not a more than 50% chance but simply “a prospect” (for example, Leeds Teaching Hospital NHS Trust v Foster [2011] UKEAT 552_10_1406 which said there had to be “a chance” or “some prospect”). A reading of the Hindmarch judgment shows that the position has not really changed or narrowed at all.
Hindmarch was a case about an ambulance driver in the midst of the Covid Pandemic. He was vulnerable to covid because of asthma and had a anxiety related disability. All scheduled ambulance drivers (such as the claimant) were provided with FFP2 masks whereas unscheduled (because of higher risk) were given FFP3 masks which offered significantly more protection but had other limitations to their use. In giving the FFP2 masks the NHS Trust were following their policy. The claimant commenced sickness absence because of his anxiety. The claimant alleged that by not giving him FFP3 masks the trust refused to make reasonable adjustments.
The argument is certainly a cogent one and in other circumstances this may have been a reasonable adjustment. However, on the specific facts, the tribunal found that there was no real prospect that if the FFP3 had been offered the claimant would have been able to return to work (note the tribunal does not talk about balance of probabilities but no real prospect).The EAT succinctly explained the rationale at paragraph 61 saying “It cannot be reasonable to require a party to make an adjustment that has no prospect of achieving the desired effect … there are cases, such as this one, in which the conclusion that the adjustment has no real prospect of making a positive difference provides a complete answer.”
Whether the assessment of the facts was correct is one matter, but on the question of law this is not a controversial decision. In the non-employment case of Paulley v First Group plc [2017] UKSC 4 the same position was set out that there must be at least a “real prospect” of the adjustment removing the disadvantage.
The reason Mr Hindmarch lost his case was not because the tribunal concluded the adjustment was unlikely to be successful but because it concluded it had no prospect of being successful. Had the tribunal’s decision of fact been somewhere between these two positions (for example, the adjustment was not likely to be successful but still had a real possibility it could be) then case outcome may well have been very different … which is exactly the same legal position as before the recent Hindmarch decision.
This threshold for a reasonable adjustment claim (where prospects of success of the adjustment is one of the relevant factors that a employment tribunal will consider is a very helpful one to remember. Employer’s will often try to argue that an adjustment is not guaranteed to work, or is untested, as a justification for not making changes. For a worker seeking adjustments evidence that a change will help is of course very helpful but so long as there is a real prospect an adjustment could help that will mean there is a real question of reasonableness to be determined in an argument there has been a failure to make adjustments – and where as is often the case adjustments cost very little that may be a difficult argument for an employer to resist.
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