Employment Appeal Tribunal considers whether an undertaking may be appropriate as a reasonable adjustment

Employment Appeal Tribunal considers whether an undertaking may be appropriate as a reasonable adjustment

The Employment Appeal Tribunal has held that, in certain circumstances, an undertaking from an employer to provide a redundancy severance package to an employee if her request not to work with certain colleagues was unviable, may be a reasonable adjustment. In addition, a Tribunal was entitled to make a recommendation that the employer give such an undertaking.  

Hill v Lloyds Bank UKEAT/0173/19/LA

What are reasonable adjustments?

Under section 20 of the Equality Act 2010, there is an obligation on employers to make reasonable adjustments for disabled job applicants,employees and, in some cases, former employees. In the event that this obligation is not met, the employer may be committing an act of unlawful discrimination.

The duty to make such an adjustment may arise where an employer has (or could reasonably be expected to have) knowledge that the individual in question is disabled and is likely to be placed at a substantial disadvantage by:

  • a provision, criterion or practice implemented by the employer;
  • a physical feature of the employer’s premises; and
  • the employer’s failure to provide certain aids, for example, an auxiliary aid.

Where the duty arises, the employer must effectively identify the substantial disadvantage and consider any adjustments that can be reasonably made in an attempt to reduce or remove that individual’s disadvantage.

Where an employee brings an Employment Tribunal claim on the ground that their employer has failed to make reasonable adjustments under section 20, it is for the Tribunal to objectively determine whether a particular adjustment would have been reasonable to make in the circumstances. Factors that are usually taken into account include whether the adjustment would have ameliorated the disabled person’s disadvantage, the cost of the adjustment in the light of the employer’s financial resources, and the disruption that the adjustment would have had on the employer’s activities.

There is no express guide for an employer to follow when considering what will be a reasonable adjustment in the circumstances. However, the Equality and Human Rights Commission’s Employment Statutory Code of Practice provides some useful examples and can be downloaded here. The Code is an important tool, particularly as the Employment Tribunal must take it into account when relevant to claims under the Equality Act 2010.

Whilst this is a non-exhaustive list, the Code includes the following examples of reasonable adjustments:

  • widening a doorway in a premises or providing a ramp for wheelchair access;
  • adapting the formats in which information is communicated, for example, where an individual has learning difficulties of visual impairments;
  • allocating minor or subsidiary duties away from the disabled worker if he/she has difficulties carrying them out;
  • altering the disabled worker’s hours;
  • permitting the disabled worker to work from home; and
  • acquiring or modifying equipment, such as an adapted keyboard.

What was held in Hill v Lloyds Bank?

Hill v Lloyds Bank considered whether an undertaking by Lloyds Bank to provide its disabled employee with certain benefits if certain circumstances arose in the future, may be an appropriate reasonable adjustment.

The Claimant worked as an Analyst and Business Architect for Lloyds Bank. She had raised grievances for bullying and harassment against both her line manager and another employee, which were not upheld, and had been signed off from work for stress. On her return to work, her trade union representative requested an undertaking from Lloyds Bank that the Claimant would not be required to work with the two individuals she had accused of bullying and, if she was, then she would be offered termination with the equivalent of a redundancy payment instead. The bank confirmed that it would make some efforts to avoid the Claimant having to work with the individuals, but that it could not offer her termination with the equivalent of a redundancy payment as an alternative.

The Claimant subsequently brought proceedings, on the ground that Lloyds Bank had failed to make reasonable adjustments. The Claimant argued that she was disabled (with reactive depression) and it would have been a reasonable adjustment to give the requested undertaking. The fear of having to work with the individuals put her at a substantial advantage because of her disability, as she lived in fear and anxiety.

In the first instance, the Employment Tribunal (ET) agreed with the Claimant. She was awarded £7,500 for injury to feelings. The ET gave a recommendation that Lloyds Bank give the Claimant a prescribed undertaking that the Claimant would not work or interact in any capacity with the individuals and could explore suitable alternative employment with the bank. If this failed, the bank would use its best endeavors to ensure that the Claimant could leave with a severance package equivalent to a redundancy payment. However, when invited by both parties to reconsider the recommendation, the ET  set it aside, noting that it was inappropriate to make a recommendation covering remuneration and that it was not possible to specify a period of time for compliance or to specify the period during which it would apply in the future. Lloyds Bank appealed the ET’s decision that giving such an undertaking was a reasonable adjustment. The Claimant appealed against the ET’s reconsideration of its initial decision to give a recommendation.

The Employment Appeal Tribunal (EAT) dismissed the bank’s appeal on liability, however, it allowed the Claimant’s appeal in respect of the original recommendation. Whilst the EAT felt that the recommendation had been too vague and did not include a time limit on giving the undertaking, it could see no objection of principle to a requirement to give an undertaking that a particular employee should be treated as redundant in certain circumstances. The ET had found that the very step that was required to alleviate the disadvantage being suffered by the Claimant was an undertaking upon which she could rely to give her comfort. However, in relation to the particular recommendation which should be given by the Tribunal, the EAT remitted the question to the ET.

What practical implications might this have for employers?

This is a somewhat unusual case, but it does illustrate the fact that reasonable adjustments can be much wider than, for example, alteration to physical premises or an amendment to the employer’s sickness absence policy. Employers need to be aware that in suitable, albeit rare, circumstances, it may be a reasonable adjustment to give an undertaking to provide a disabled employee with certain benefits on the occurrence of certain events in the future. It is worth ensuring that proper consideration is given to concerns of disabled employees in these circumstances from an early stage.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Rachael Lloyd to discuss any issues you are facing.