Employment and Immigration Law Update – Disability discrimination: reasonable adjustments

In this case, the Employment Appeal Tribunal (EAT) considered whether it was a reasonable adjustment for an employer to give an undertaking to offer a severance package to a disabled employee.

Hill v Lloyds Bank plc [2020] UKEAT/0173/19

Facts

The claimant in this case had a long period of sickness absence due to stress, which she claimed was caused by bullying and harassment from two of her colleagues. Her grievance in respect of one of the colleagues, her line manager, was not upheld. When she returned to work she indicated that she did not want to work with either colleague. She sought an undertaking from her employer that she would not have to work with or report to these colleagues, and if this was not possible she would be offered a severance package equivalent to what she would receive if she was made redundant.

The claimant was not required to work with either colleague after her return, but the employer refused to give an undertaking to guarantee that this would not happen in the future. It also told her that she would not be offered a severance package if this happened, as her role would not be redundant.

The claimant’s claim for a failure to make reasonable adjustments was upheld by an employment tribunal. It decided that her employer’s practice of refusing to give an undertaking that she would not have to work with her former colleagues placed her, as a disabled person, at a substantial disadvantage due to the level of anxiety it would cause her. Giving such an undertaking would have been a reasonable adjustment in the circumstances. The tribunal also made a formal recommendation under the provisions of the Equality Act 2010. The recommendation was that the employer should give an undertaking to ensure that the claimant did not work with her former colleagues and, in the event this was not possible, it would use its best endeavours to secure a severance package for the claimant. This recommendation was subsequently set aside by the tribunal on the basis that it was inappropriate to make a recommendation covering remuneration and it was not possible to put a timescale on the recommendation. Both parties appealed.

EAT decision

The EAT upheld the tribunal’s finding that the employer was in breach of its duty to make reasonable adjustments.

Giving an undertaking to the claimant would have been a reasonable adjustment for the employer to make. The EAT rejected the employer’s argument that committing to a future severance payment could not be a reasonable adjustment because the purpose behind the duty to make reasonable adjustments is to keep a disabled employee at work. Had it provided the claimant with such an undertaking, it would have enabled her to return to work without fear.

The EAT agreed that there were problems with the recommendation made by the tribunal, due to the lack of time limit and vague wording. However, the tribunal was wrong to conclude that it should not make any recommendation. The undertaking could be given a time limit, or it could remain in place indefinitely; there is no objection in principle to a tribunal giving a recommendation that an employer give an undertaking, even though in practice this is likely to be rare. The EAT remitted the case to the tribunal to reconsider what recommendation should be made.

Consequences

This decision is rather concerning for employers faced with a difficult situation between employees who do not want to work together, particularly if the duty to make reasonable adjustments arises. It is still relatively uncommon in practice for a tribunal to make a formal recommendation to a respondent after losing a discrimination claim, in addition to awarding compensation, but this case illustrates the potentially wide scope of such a recommendation. The EAT commented that an undertaking of this nature will be rare in practice, and it seems likely that the size and resources of the employer in this case would have been a factor in reaching its decision.

These articles are from the July 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.