The Claimant was considered disabled as he suffered from asthma, and was required during the pandemic period to wear a face covering whilst serving customers. The Claimant adopted a practice whereby he would generally wear the mask below his nose and would only lift it above his nose when he anticipated encountering someone in authority. He claimed in the ET that the Respondent had failed to make reasonable adjustments for him. The ET concluded that the Respondent had made a reasonable adjustment for the Claimant by permitting him to wear the covering below his nose other than when he saw a person in authority. The Claimant appealed against that judgment on the basis that it was not the Respondent that permitted the adjustment, the Respondent was unaware of the adjustment, it was an adjustment made by the Claimant without the permission of the Respondent and therefore could not amount to the Respondent complying with a duty to make an adjustment for the Claimant.

The EAT allowed the appeal. It was clear from the decision of the ET that it concluded that the Respondent was aware of the adjustment being made by the Claimant and, at the very least, consented to it, which it considered was sufficient to constitute the making of a reasonable adjustment. That incorrect understanding of facts that were not in dispute, namely, that the Respondent did not know of the adjustment and did not agree to it, necessarily meant that the appeal must be permitted. However, as there appeared to have been a fundamental misunderstanding as to what had occurred and as to the knowledge of the Respondent as to any problems faced by the Claimant once he started wearing a mask, the matter should be remitted to the ET to re-determine the reasonable adjustments claim.