Phobias, Disability and Reasonable Adjustments

The Equality Act 2010 states that a person is disabled if they have a physical or mental impairment that has a ‘substantial’ and ‘long-term’ effect on their ability to carry out normal day-to-day activities. The Act defines ‘substantial’ as more than minor or trivial, and ‘long-term’ as at least 12 months or more.  A phobia is not specifically excluded from the definition therefore it can be classified as a disability if it meets the requirements under the Act.

Recently the Employment Appeal Tribunal dismissed a claim brought by a former employee providing rehabilitation services at South Warwickshire NHS Foundation Trust. It was claimed that the hospital had failed to make reasonable adjustments for the Claimant who had a phobia of blood and needles which had grown more intense as time went on. His phobia was accepted to be a disability which prevented him from carrying out his normal daily activities but, the claim that the hospital failed to make reasonable adjustments was unsuccessful. The tribunal considered the full circumstances and although the Claimant’s job description did not adequately reflect the changes made to his duties, the tribunal concluded that the hospital had, following grievances made by the Claimant, made reasonable adjustments to enable him to carry out his job. The hospital took steps to ensure that the Claimant’s phobic reaction was not triggered by only requiring him to support collection and return of patients from the ward, as opposed to being present on the ward.

In order to claim that a particular phobia is a disability, the phobia would have to meet the definition of disability under the Equality Act 2010. In the case of Pawlicka v St John and Red Cross Defence Medical Welfare Service, the Claimant’s ‘necrophobia’, which is an extreme or irrational fear of death or dead bodies, was found not to be a disability. In this case, the Claimant accepted a job as a welfare officer and as part of her job, she had to accompany individuals when viewing the dead body of a relative for identification purposes. The Claimant became increasingly distressed because of her fear of seeing corpses. She brought a claim to the employment tribunal claiming that she was discriminated based on her depression and necrophobia which she claimed were disabilities under the Equality Act 2010. The Employment Tribunal found against her and said that as neither her depression nor fear of corpses was long-term she was not classed as disabled.

Reasonable adjustments can be essential to enabling a disabled person to carry out the job to the best of their ability and there are only specific circumstances when an employer can avoid liability if they have failed to comply with this requirement.  The costs and practicability of making an adjustment, as well as, the resources that are available to an employer are important factors that will help determine whether adjustments can reasonably be met by an employer.

The case of Dyer v London Ambulance NHS Trust is another illustration of circumstances where reasonable adjustments were not achievable. The case concerned an employee who during the course of employment developed a severe allergic reaction to the use of aerosolised body spray. The Claimant claimed that she had been unfairly dismissed and that she had been made subject to discrimination on the ground of disability by a failure to make reasonable adjustments as the employer failed, to ban its employees from wearing perfume and aerosol. The employment tribunal found that it would have been impractical to have such a policy in place but, noted that implementing a policy of prohibiting use of certain substances may be reasonable and practicable in some workplaces, however, because of the size and nature of the London Ambulance NHS Trust, it was not achievable in this case.

Once the obligation to make reasonable adjustments arises, employers need to ensure that they take positive and active steps to remove – as far as practically possible – the obstacles a disabled employee or job applicant may have.

Dominic Bonham