EAT holds employer undertaking was a reasonable adjustment
Wednesday 8th July 2020
The EAT found in Hill v Lloyds Bank plc that making reasonable adjustments for disabled employees can include giving an undertaking with respect to severance pay should a particular circumstance arise in the future.
Mrs Hill, an employee with Lloyds Bank plc for over 30 years, was on sick leave from suffering from a reactive depression, allegedly caused by bullying and harassment at work. When she returned to work, it was agreed that she would not have to work with the individuals (identified as M & B) who had allegedly bullied and harassed her. However, she was very anxious about the possibility of having to work with them again in the future.
She asked Lloyds to provide an undertaking agreeing that she would not at any time, have to work with or report to M & B and that if there was no practical alternative, it would offer a severance package equivalent to what she would have received on being made redundant. Lloyds refused.
Mrs Hill, brought a claim under the Equality Act 2010 for failure to make reasonable adjustments, arguing that she was placed at a substantial disadvantage compared to a non-disabled person, being in a state of constant fear, worry and stress that she may be required to work with M & B and this exacerbated her physical and mental conditions.
The ET held that Lloyds had failed to make reasonable adjustments, finding on the evidence presented that Lloyds had a practice of not providing undertakings in circumstances such as these. This practice did place Mrs Hill at a substantial disadvantage, and it would have been reasonable for Lloyds to give the undertaking proposed by Mrs Hill. Lloyds appealed.
The EAT dismissed the appeal, refuting the argument that the refusal to give the requested undertaking was a one-off decision, not capable of being a practice. It considered that the ET had made clear findings of fact on the issue, based on Lloyds’ own evidence.
Additionally, the EAT held that the ET had been entitled to find that Mrs Hill had been placed at a substantial disadvantage when compared with a non-disabled person and that this would have been alleviated by the proposed undertaking. The EAT saw no reason why reasonable steps would not include giving an undertaking to provide a disabled employee with certain benefits (including financial) if, in the future, certain circumstances arise. Furthermore, the very purpose of the undertaking was to allow Mrs Hill to remain at work by allowing her to carry out her work without fear.
As well as awarding Mrs Hill compensation for injury to feelings, the ET had originally made a recommendation under the Equality Act requiring Lloyds to provide an undertaking. However, on reconsideration, the ET set this aside.
The EAT found that in principle such a recommendation can have potential financial implications, such as requiring a particular employee to be treated as redundant in certain circumstances, particularly as this was reinforcing the basic undertaking that Mrs. Hill not be required to work with M and B. The EAT also found that certain requirements could remain in place indefinitely. The failure to provide an undertaking was the basis for Mrs. Hill’s successful disability discrimination claims and therefore the EAT could find no reason why the ET should not have made a recommendation along the lines she has proposed. The question was remitted back to the ET.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.