EAT decides whether an undertaking by an employer was a reasonable adjustment - Hill v Lloyds Bank plc

The Employment Appeals Tribunal (‘EAT’) has held that an undertaking by an employer to give a disabled employee a severance package if her request not to work with certain colleagues was not possible, would have been a reasonable adjustment.

The Claimant who worked for the Respondent for over 30 years was on sick leave for over a year as a result of stress from bullying and harassment at the hands of two work colleagues. Her stress amounted to a disability under the Equality Act 2010. When returning to work, the Claimant sought an undertaking from the Respondent that she would not be required to work with these two colleagues and in the event that there was no alternative, it would offer her a severance package equivalent to what she would have received on redundancy. Whilst the Respondent made arrangements to avoid the Claimant having to work with the colleagues in question, it could not guarantee this wouldn’t happen in the future and they could not offer a severance package to the Claimant if this situation arose.

The Claimant brought a claim for failure to make reasonable adjustments whilst remaining in employment, arguing that she was in a state of "constant fear, worry and stress" from the prospect of working with these colleagues which placed her at a substantial disadvantage compared to a non-disabled person. The employment tribunal (‘ET’) upheld the claim that a refusal to give the undertaking constituted a failure to make a reasonable adjustment and made a recommendation to the Respondent, which was subsequently set aside on reconsideration, as well as awarding compensation for injury to feelings. The Respondent appealed.

The EAT dismissed the appeal and upheld the decision of the ET.

The Respondent’s argument that it’s refusal in this case to give an undertaking was a one-off decision was rejected by the EAT following the clear finding of the ET, who relied on witness evidence, that there was instead a practice of not giving such undertakings.

The practice was held to have put the Claimant at a substantial disadvantage in comparison with others who did not suffer from a disability as “she suffered a level of anxiety and fear about the possibility that she would be required to work with the colleagues in the absence of an undertaking which a non-disabled person who had been bullied and harassed would not have.” If the Respondent had given the undertaking, this fear would have been alleviated and it would have been reasonable for them to do so.

With regards to the ET’s recommendation to the Respondent to perform this undertaking, the EAT held that there were issues with the drafting of this and agreed that it should have been set aside. However, the decision to not make a recommendation at all was wrong as the purpose of a recommendation is to benefit disabled employees, which can include financial implications for the Respondent. It therefore remitted the question of what recommendation should be made to the tribunal. It also sent back the issue of the names of the colleagues in question being anonymised, which the Claimant appealed, holding that this was not in keeping with current practice.

Employers must remember their obligations under the Equality Act to make reasonable adjustments where a disabled employee is placed at a substantial disadvantage by an employer's provision, criterion or practice. This decision is a useful reminder to employers to take concerns raised by employees seriously and consider their response carefully, especially when it concerns a request for a reasonable adjustment.