The EAT has held that an employment tribunal could make a recommendation in a successful reasonable adjustments claim that the employer give an undertaking that it would not require a disabled employee to work with certain colleagues and to pay a severance package if it could not avoid this.
The facts
Mrs Hill suffered from reactive depression which she said resulted from bullying and harassment at work. She raised a grievance against her immediate line manager, Ms M, which along with the subsequent internal appeal was not upheld. She also had issues with Ms M’s line manager, Mr B. Mrs Hill did not want to work with either Ms M or Mr B again, nor did they wish to work with her.
When she returned to work from sick leave, Mrs Hill worked in a different office and in different cities from Ms M and Mr B. She had no concerns about this working situation but was anxious that she might have to work with Mr B or Ms M again. She said that this caused her to feel physically sick and be in a constant state of fear.
Mrs Hill’s trade union representative requested an undertaking that Mrs Hill would never have to work with or be managed by either Ms M or Mr B, and that if business demands left no practical alternative she would be offered a redundancy or severance package under the full terms applying to her contractual status. Her employer, Lloyds Bank PLC, refused saying it could make some efforts to make sure that Mrs Hill did not have to work with either, but it was not possible to provide an absolute guarantee.
Mrs Hill continued to be employed without any further problems. However, she successfully claimed disability discrimination based on a failure to make reasonable adjustments in the employment tribunal. She argued that she was placed at a substantial disadvantage compared to a non-disabled employee because she was in a state of “constant fear, worry and stress” that she might have to work again with Mr B or Ms M.
Mrs Hill asked the employment tribunal to make a recommendation that Lloyds should undertake in writing that it would not rearrange duties so that she had to work with Ms M or Mr B and that, if it there were no alternatives to her doing so, it would offer her a redundancy package.
The employment tribunal made a recommendation in similar terms to that requested. Both parties asked the employment tribunal to reconsider the recommendation, Lloyds arguing that it was inappropriate to make a recommendation covering remuneration over an indefinite timeframe.
The employment tribunal set their recommendation aside. Lloyds and Mrs Hill appealed to the EAT.
One of Lloyds’ grounds of appeal was that its decision not to offer an undertaking was not a provision, criterion or practice (“PCP”) (which is necessary to trigger the obligation to make reasonable adjustments), but a one-off decision in relation to its dealings with Ms Hill.
However, the employment tribunal had made a finding of fact that it was Lloyds’ practice not to give binding undertakings to employees but, instead, to use “words of comfort”. In light of the tribunal’s finding, the EAT dismissed this ground of appeal. The EAT found that the undertaking would have alleviated Mrs Hill’s fear and anxiety, and it would have been reasonable for Lloyds to have given it in the form requested.
Lloyds also argued that it was unreasonable for it to be required to commit to making a substantial severance payment at some point in the future because the purpose of making a reasonable adjustment is to keep the employee in work, not to make a provision for her to leave work. The EAT saw no reason why it would not, in principle, be reasonable to give an undertaking to provide a disabled employee with certain benefits if, in the future, certain circumstances arise. The purpose of the undertaking was, under these circumstances, to keep Mrs Hill in work by enabling her to work without fear by giving her a “backstop”.
The EAT agreed with Lloyds that the undertaking required by the employment tribunal’s original recommendation was too wide. However, it concluded that there was no objection in principle to an employment tribunal making a recommendation that an employer give a written undertaking with financial implications that would remain in place indefinitely.
The question of the detail of the recommendation was remitted to the tribunal.
What does this mean for employers?
This case marks an extension of the law on reasonable adjustments. It is surprising that giving a written undertaking to an employee about a future severance package is a reasonable adjustment to enable an employee to work. The EAT commented that the cases where this would be appropriate will be rare and the need for the severance package must be linked (as it was here) with an intention to keep the employee in work. However, it is not uncommon for employees to claim they live in fear of a manager, even when that has been considered not to be the case by an internal grievance process. It is likely that employees will use this case as a basis for requesting written undertakings from their employers. Any such requests should be considered on a case by case basis.
