Disability discrimination and reasonable adjustments

In the case of Hill-v-Lloyds Bank plc, the EAT confirmed this month that a potential reasonable adjustment for a disabled employee could be to undertake to pay the employee a sum of money under a severance package where there are no practical alternatives to requiring her to work with colleagues who the employee alleges had bullied and harassed her.

The case – in brief

The claimant, Mrs Hill, was disabled in that she suffered from a reactive depression which she said resulted from bullying and harassment at work.

On her return to work after a period of sick leave, she sought an undertaking from her employer, Lloyds Bank plc, that they would not require her to work with the two colleagues concerned and, if at a later stage there was no alternative, that she would be offered a severance package equivalent to that provided on redundancy. Lloyds Bank plc refused to give any undertaking to that effect.

The EAT held that the Employment Tribunal (ET) had been entitled to find for Mrs Hill on a claim of disability discrimination based on a failure to make reasonable adjustments on the following grounds:

• that on the facts, Lloyds Bank plc had a “practice” of not giving firm undertakings in circumstances like these;
• that that practice had put Mrs Hill at a substantial disadvantage in comparison with others not suffering a disability because she suffered a level of anxiety and fear about the possibility that she would be required to work with the colleagues in the absence of an undertaking which a non-disabled person who had been bullied and harassed would not have;
• that the giving of an undertaking would have alleviated the disadvantage because it would have alleviated that fear; and
• that it would have been reasonable for Lloyds Bank plc to give a firm undertaking in the form requested.

The EAT also held that there was no reason in principle preventing the ET, having found for Mrs Hill on this basis, from making a recommendation requiring Lloyds Bank plc to give a written undertaking along the same lines.

Why is this important?

This is a rather unusual case, as an undertaking to agree a severance package if certain circumstances are met is fairly unusual.

The key here in our view is that the bank seemed to be saying that they had received requests previously for undertakings that a severance package would be agreed if certain criteria were met.  This is why the EAT was able to say that Lloyds Bank plc had a “practice” of not giving firm undertakings in circumstances like these.

It is therefore worth bearing in mind that we may now start to see employees who allege that they have been bullied at work, and become seriously ill because of it, asking for an undertaking of the kind Mrs Hill asked for.

Employers should be very careful in their response to such requests and should seek legal advice in the first instance.

Please note, the information included in this update is correct at the date of publishing.