Reasonable Adjustment Remedies
In the recent case of Hill v Lloyds Bank plc, the Employment Appeal Tribunal (EAT) considered the recommendations it can make in discrimination cases. In this case, the EAT held that it was a reasonable recommendation for an employer to undertake to pay a severance payment to an employee if the employer could not guarantee a reasonable adjustment not to work with certain employees.
The Claimant had a disability, namely, depression which she said was caused by being bullied and harassed by two colleagues. After a period of sickness absence caused by stress from the bullying and harassment the Claimant was not required to work with colleague upon her return to work as they were based in physically different offices. However, she stated that she was anxious that she may have to work with them in the future and that this made her feel physically sick and exhausted.
As a consequence, the Claimant sought an undertaking from her employer that she would not have to work with or report to either employee and that if this was not possible the employer would offer her a severance package equivalent to what she would have received on redundancy. The Employer responded that it could not provide an absolute guarantee although it could make some efforts to ensure this did not happen. It also told her that it would not be able to offer a redundancy or severance package in this scenario, as her role would not actually be redundant.
The Claimant subsequently brought a failure to make reasonable adjustment claim and both the first instance tribunal and the EAT agreed that;
- The employer had a 'practice' not to give such undertakings;
- the Claimant was put at a substantial disadvantage that a non-disabled person would not have because of this 'practice' which caused her anxiety and fear;
- the undertaking would have alleviated the disadvantage by reducing that fear; and
- it would have been reasonable for the employer to give the undertaking.
The failure to give the undertaking was the basis for her success in her reasonable adjustments claim. On appeal, the EAT also considered whether a recommendation for the undertaking the Claimant requested was a suitable remedy. The EAT held that it saw no reason why it could not be reasonable to give such an undertaking as a suitable remedy that provided a disabled employee with certain benefits should future circumstances arise. The EAT held that the purpose of the undertaking sought was to give a "backstop" enabling her to work without fear.
Whilst, the EAT held that a recommendation would be reasonable it found that the original recommendation was not suitable and problems with the original recommendation included; there was no time limit for the undertaking, there was no requirement for it to be in writing and the original wording required the Claimant to do things to explore suitable alternative employment.
What does this mean for employers?
This decision may concern employers as a reasonable adjustment could require employers to ensure that disabled employees do not have to work with colleagues following a relationship breakdown or they could be required to commit to a substantial severance payment. As such, employers should consider carefully any concerns raised by disabled employees with the view to reaching an agreement that both parties are happy with. This approach is supported by the EAT’s reasoning that where possible, taking some more informal steps to satisfy the employee's reasonable concerns at an early stage might prevent the request escalating. It is also worth noting that it is possible that when reaching its decision the EAT had in mind that the employer (Lloyds plc) is a large employer and had significant resources and a different decision could be reached for smaller employers.
This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.
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