Employer Undertakings May Be Appropriate As A Reasonable Adjustment In ET Recommendations

In Hill v Lloyds Bank, the Employment Appeal Tribunal (EAT) had to consider whether:

1. It may be a reasonable adjustment for an employer to give an undertaking to provide disabled employees with certain benefits if certain circumstances arise in the future; and
2. In a suitable case, an Employment Tribunal may recommend that an employer provide such an undertaking.

Hill v Lloyds Bank

Case background

Section 20 of the Equality Act 2010 (EA) places an employer under a duty to make reasonable adjustments where, among other things, a “provision, criterion or practice of [the Employer] puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled…” The duty is “to take such steps as it is reasonable to have to take to avoid the disadvantage.”

The proposed adjustment must be one that has a real prospect of preventing the disadvantage before the adjustment becomes one that the employer is duty-bound to make.

An employer will only be under a duty to make a particular proposed adjustment (and, therefore, only in breach of the duty to make reasonable adjustments if that adjustment has not been made) if it is reasonable in the circumstances to expect the employer to make that adjustment.

Section 124(2) of the EA gives an ET the power to “make an appropriate recommendation” where it finds that a claimant has suffered from unlawful discrimination.

Facts

Ms Hill has worked for Lloyds for more than 30 years. She was absent from work due to stress from July 2016 to October 2017. She brought a grievance against her line manager, Ms M, alleging bullying and harassment. Lloyds did not uphold her grievance. Ms Hill also had issues with Ms M’s line manager, Mr B, but did not lodge a formal grievance against him.

When Ms Hill returned to work following her sickness absence, she was based at Lloyd’s Bristol office. Ms M worked in Glasgow and Mr B worked in London. However, Ms Hill’s trade union representative requested an undertaking from Lloyds that Ms Hill:

• Would not be required to work with, or under the management of, either Ms M or Mr B; or
• If she was, then she would be offered termination with the equivalent of a redundancy payment.

In response, Lloyds said:

• It would “make some efforts” to ensure that Ms Hill did not have to work with Ms M or Mr B in the future, but it was “not possible to provide an absolute guarantee”; and
• It could not offer termination with the equivalent of a redundancy payment as an alternative.

Ms Hill brought a disability discrimination claim against Lloyds on the basis that:

• Lloyds had failed to make reasonable adjustments for a person who was disabled (with reactive depression from the bullying and harassment); and
• It would have been a reasonable adjustment for Lloyds to have given the undertakings because:
  • Its practice of not giving undertakings to staff that they would not have to work with people they had accused of bullying put her at a substantial disadvantage (she lived in a state of fear and anxiety); and
  • Providing the undertaking would have been a reasonable step to take to avoid that.

The ET upheld Ms Hill’s claim and awarded her the sum of £7,500 for injury to feelings. It also recommended that Lloyds give an undertaking as follows:

“The Respondent undertakes to ensure that the Claimant does not work or interact in any capacity with Mr B or Ms M and that in the event that this not possible that the Respondent and the Claimant explore suitable alternative employment with the Respondent and if this fails that the Respondent uses its best endeavours to ensure that the Claimant can leave the Respondent with a severance package equivalent to its redundancy payment scheme applicable at the time of her departure.”

Lloyds appealed arguing that:

• The proposed adjustment was not reasonable; and
• The ET should not have made the above recommendation.

Decision

The EAT rejected Lloyd’s appeal relating to the ET’s finding of a failure to make reasonable adjustments. In doing so, it held that:

• There was no reason why reasonable steps should not include the giving of an undertaking to provide a disabled employee with certain benefits if in future certain circumstances arise; and
• The fact that this would amount to a special benefit cannot be an objection: giving special benefits is inherent in the whole reasonable adjustments disability discrimination scheme.

In relation to the ET’s recommendation, the EAT upheld Lloyd’s appeal on the basis that the recommendation was too wide, far-reaching and vague.

Comment

In this case, the EAT confirmed that it may, in the right circumstances, be a reasonable adjustment (i.e. one the employer is required to make) for the employer to give an undertaking (promising to do certain things) to a disabled employee.

This case also goes some way to clarifying the scope of recommendations that an ET may make as a remedy in a discrimination case. It confirms that there is, in principle, no barrier to an ET recommending that an employer give a specified undertaking in suitable cases. However, we expect that such cases will be quite rare in practice.