Posted by Richard White, Partner
Clearing the air: aerosols and perfume in the workplace
It’s the norm for office workers to be based in open plan offices, often in close proximity to fellow employees. To deal with the inevitable grumbles and occasional tensions, employers often have policies relating to loud chit-chat, eating hot food at desks, and many provide break-out facilities. But what about employees who use their desk or place of work to put on make-up or perfume or aerosol-based products? Could this have an adverse affect on those with allergies? And what of dissemination in the air of potentially alcohol based products to co-workers?
Mrs Dyer worked in a busy control room at London Ambulance NHS Trust dealing with 999 calls. She had a life-threatening sensitivity and suffered several serious adverse reactions at work because of perfumes and aerosols used by fellow employees at their desks. London Ambulance concluded after one life-threatening reaction that no ‘reasonable adjustments’ could be made to her place of work and dismissed her on grounds of capability.
In her disability discrimination employment tribunal claim, Mrs Dyer argued that as she had a life-threatening sensitivity to aerosols and perfumes and that her employer had a duty to make reasonable adjustments by banning fellow employees from using such products while at work. The Employment Appeal Tribunal agreed with the employer that given this was a busy control room it was not practicable to ban staff from using these products.
An employer has a duty to make reasonable adjustments in the workplace, where a provision, criterion or practice (PCP) puts a disabled individual at a substantial disadvantage, compared to a person without a disability. In determining whether the adjustment is reasonable, employers need to consider whether the adjustment would balance out the disadvantage.
It is a surprising decision that it was not practicable to ban employees from using such products at their workstation. It appears that one of the factors in the decision was that Mrs Dyer may have suffered adverse reactions from being in proximity to individuals who came to work wearing perfume or aerosol products, and not just its use in the workplace. Also, London Ambulance had made previous attempts to implement a perfume-free workplace which had not succeeded.
But it is important to note that the tribunal said that such an adjustment may be reasonable in smaller workplaces.
And what about the use of alcohol-based sprays being used in close proximity to those whose religion forbids ingesting of alcohol; could a failure to adopt a policy banning use of such products in the workplace give rise to a justified complaint of discrimination?
- We would recommend that employers should always consider making reasonable adjustments and, as in this case, see whether they work before dismissing a disabled employee on the grounds of capability.
- This case is a good example of adjustments in the workplace needing to be practicable. When putting in place a reasonable adjustment, it is important to take into account the practicalities of implementing and monitoring the adjustment. Just because it was not reasonable in the case of Mrs Dyer does not mean that similar claims will not succeed in future.
- Medical evidence may be required before concluding that an adjustment is not viable – and London Ambulance was able to produce evidence to this effect. If there is no viable adjustment that can be made to the workplace, employers ought to also consider whether it is possible for the employee to work from home.
- Employees’ medical or other sensitivities to products, whether introduced by the employer or by other employees to the workplace, should be taken seriously by employers.
For more information and advice on any reasonable adjustments in the workplace, or any other employment law or HR matter, please get in touch with members of our Employment & HR Team.
0800 051 8054 Email us
It pays to employ the right employment solicitor