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Employer undertaking as a reasonable adjustment
Hill v Lloyds Bank plc
Giving an undertaking not to make an employee work with those she claimed had bullied and harassed her, or to offer her a severance package if this wasn’t feasible, was a reasonable adjustment.
Mrs Hill, a long-serving employee of Lloyds Bank, complained of bullying and harassment by two colleagues. She was off sick for over a year with reactive depression as a result, which classed her as disabled for the purpose of the Equality Act 2010. On return, she was placed in a different branch/region to the alleged bullies. She wanted an undertaking that would remain the case. The undertaking she wanted was to the effect that she’d never be required to work with them and, in the event that business demands left the bank with no practical alternative, she’d be offered a severance payment akin to redundancy. It was an undertaking the bank wasn’t prepared to give. Although Lloyds Bank had made efforts (successfully) to separate them, it wasn’t prepared to give an undertaking that this would always remain so, nor as to the severance solution if that proved impossible. Even though she was happy at work, Mrs Hill suffered anxiety through the lack of reassurance given the absence of the undertaking. She remained in employment and brought a claim of failure to make reasonable adjustments, arguing that she’d been placed in a situation of substantial disadvantage compared to a non-disabled person in that she was in a state of constant fear and stress that she might have to work with her alleged harassers which exacerbated her physical and mental symptoms. Her complaint was upheld by a tribunal which, as well as making an award of compensation for injury to feelings, made a recommendation that Lloyd’s Bank give an undertaking in wider terms than those sought by Mrs Hill, who was still employed.
Lloyds Bank had asked the tribunal to reconsider the recommendation (the first step before a formal appeal) which it had and decided to set it aside altogether. Lloyds Bank appealed on the liability issue and Mrs Hill appealed against the tribunal’s decision to set aside its original recommendation and also queried why the names of the two alleged bullies had been anonymised in the tribunal decision.
The bank’s appeal was dismissed and Mrs Hill’s appeal relating to the recommendation was allowed.
As to liability, the bank had a ‘practice’ not to give such undertakings (it was not a one-off decision) and the resulting fear and dread amounted to a substantial disadvantage as against someone not disabled through anxiety. The undertaking was a reasonable adjustment to make. Its purpose was to give a comfort-blanket backstop to give Mrs Hill the reassurance to remain in work.
The EAT agreed that the original wide-ranging recommendation proposed by the tribunal was too wide and was rightly set aside. However, to then hold that no recommendation should be made, as the tribunal had, was wrong. The bank argued that financial provisions (such as requiring an employee should be treated as redundant in certain circumstances) were not appropriate for a recommendation. The EAT disagreed; the whole point of the reasonable adjustments regime was to benefit disabled employees and many recommendations can have financial implications, e.g. continuing with sick pay. The bank also argued that recommendations could not be open-ended in time. The EAT disagreed – there was no problem with placing a time limit on the giving of the undertaking, and no objection in principle to a recommendation containing a requirement that steps, once taken, must remain in place indefinitely. The question of what recommendation should be made was sent back to the tribunal to reconsider.
Finally, the EAT said that anonymising the names of the two alleged bullies was not in keeping with practice directions or current case law and the tribunal should have sought representations before doing this - this point was also sent back for reconsideration.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0173_19_0603.html
If the bank had said ‘we have never been asked for this kind of undertaking before’ then this would not have been a ‘practice’ which could be reasonably adjusted. However, by saying ‘we never give this kind of undertaking’ it is a practice and the tribunal and EAT clearly believed it was a reasonable one. Employees who have been bullied at work and become seriously ill with a disability as a result will no doubt be requesting more undertakings in the future and an employer should be very careful in its response.