"Managing People with Morecrofts"

Failing to ban perfume and deodorant in the workplace – Breach of disability legislation?

by Thomas Sutherland

Thomas Sutherland An interesting case recently heardin the Employment Appeal Tribunal (Dyer v London Ambulance NHS Trust) has considered whether a failure to ban perfume and deodorant led to discrimination against an employee classed as disabled.

During the course of her employment answering 999 calls, the Claimant developed a potentially life-threatening reaction to aerosols which eventually led to her hospitalisation following severe chest pain and shortness of breath. The Claimant had previously suffered numerous reactions of increasing severity.

Despite obtaining advice from an expert, the Trust concluded it was unable to implement and enforce an aerosol and perfume-free policy due to the difficulty of enforcing the policy. This decision was also taken in light of the potentially fatal consequences to the Claimant of the policy being breached. Due to this, the Trust found itself with no choice but to dismiss the employee on capability grounds due to her being unable to work on their premises.

Following her dismissal, the Claimant brought a claim on the ground that her employer had failed to make a ‘reasonable adjustment’ to ban perfume and deodorant from her workspace on account of her disability.

The tribunal found that it not reasonable or realistic for the Trust to be able to enforce a complete ban on cosmetic aerosols in the workplace. The tribunal placed reliance on the fact that the Trust had previously attempted to alert the Claimant’s colleagues of the health risk of using aerosols, but this had not altered the colleagues’ conduct and had failed to remedy the situation.

Whilst the tribunal found that a smaller employer could have facilitated the aerosol ban policy, the Trust was unable to do so when taking into account the layout of its premises and nature of the job.

It is important to note that the facts of this case are highly unusual and that, in the vast majority of circumstances, an employer will be expected to make some form of ‘reasonable adjustment’ in light of an employee’s medical condition and/or disability.

Indeed, if the tribunal had found that the employer could have reasonably implemented and enforced the policy, or found that the Claimant was able to perform her job properly from home, the employer would most likely have been found to have discriminated on grounds of disability by failing to implement a ‘reasonable adjustment’.

It is therefore important that employers are aware of the need to make ‘reasonable adjustments’ in situations where an employee is disadvantaged by a medical condition potentially amounting to a disability. As demonstrated above, many different conditions can constitute a disability and it is important that expert legal advice is sought in situations where a potential disability arises.