Mr K Hindmarch v North East Ambulance NHS Foundation Trust — 2024

The claimant, Mr K Hindmarch, was an ambulance care assistant with the respondent trust. The case centred on his request for an FFP3 mask during the coronavirus pandemic, which he said would have reduced his anxiety about transporting Covid-positive patients and enabled him to return to work. The tribunal found that by 14 May 2021 his mental health impairment, described as stress, anxiety and depression, met the definition of disability, and that the respondent knew or ought reasonably to have known by 21 October 2021.

On the reasonable adjustments claim, the tribunal accepted that the respondent operated a PCP that FFP3 masks were provided only for staff performing aerosol-generating procedures. It held, however, that providing an FFP3 mask to the claimant would not have had a realistic chance of removing the disadvantage he experienced, because his inability to work stemmed from a deeper anxiety about Covid-19 rather than simply the absence of that equipment. The tribunal found it reasonable that the respondent provided FFP2 masks, offered alternative duties in the stores, and explored return-to-work options, including occupational health input and phased return.

On the section 15 claim, the tribunal accepted that the dismissal and the dismissal of the appeal were unfavourable treatment and that they arose from the claimant's long-term absence, which in turn arose in consequence of his disability. It nevertheless held that the respondent had established a proportionate means of achieving a legitimate aim. The legitimate aim identified was the effective management of sickness absence while having regard to employee welfare and service needs, and the tribunal accepted evidence that the claimant's prolonged absence had a significant impact on the respondent's ability to deliver patient transport services.

The unfair dismissal claim also failed. The tribunal found that capability was a potentially fair reason for dismissal, that the respondent carried out a fair process, obtained occupational health advice, consulted the claimant, considered alternatives and could reasonably conclude by September 2022 that it could not wait any longer for a return to work. It therefore dismissed all claims. It also recorded that the respondent's objection to providing FFP3 masks was based on national guidance for scheduled care roles, not cost or lack of stock, and it held that the complaint about failure to provide the mask was treated as a continuing act for time-limit purposes.