Disability discrimination – Would giving an undertaking offering severance pay be a reasonable adjustment for an employer to make?

15th July 2020

The Employment Appeal Tribunal (EAT) certainly felt that it would – here we look at the issues it raises.

Background – Hill v Lloyds Bank Plc

Ms Hill was employed by Lloyds for more than 30 years. She had been absent from work, sick, after alleging that two colleagues were bullying and harassing her – her physical and mental health were badly affected by her fear of having to return to work and, even if not immediately, being required to work with one or both of these colleagues.

Ms Hill’s two colleagues also did not want to work with her.

She asked Lloyds to provide her with an undertaking to say that she would not be required to work with and/or report to the two colleagues who were the subject of her complaints and that, if business demands meant that the company would have no alternative, Ms Hill would be offered a severance package equal to what she would have received if she were made redundant.

The proposed undertaking, it was suggested, would have alleviated Ms Hill’s fears.

Lloyds refused to provide such an undertaking.

Ms Hill’s case progressed through the tribunal system and it was found that giving the proposed undertaking would have been a reasonable adjustment for the company to make.

How did that happen?

Ms Hill brought a successful disability discrimination claim. She suffered from reactive depression, impacted by her colleagues’ alleged behaviour.

It was found that the giving of such an undertaking would be a reasonable adjustment as, without it, Ms Hill was placed at a substantial disadvantage compared to a non-disabled person.

In the first instance, Ms Hill was awarded £7,500 for injury to feelings and the Employment Tribunal (ET) made a recommendation that Lloyds give an undertaking. Both Ms Hill and Lloyds invited the ET to reconsider the recommendation. The ET set aside the recommendation altogether. Lloyds appealed on various grounds, including against the recommendation that had originally been made. Ms Hill appealed against the reconsidered decision.

In the subsequent appeal, the EAT saw no reason why it could not be reasonable within section 20 of the Equality Act 2010 to give an undertaking to provide a disabled employee with certain benefits if, in future, certain circumstances arose.

This finding was made in the face of Lloyd’s argument that there had been no discrimination, its claim that it did not have a practice of not giving such undertakings and its argument that it would be unreasonable to commit to a redundancy package in due course “because (a) the circumstances would be that the employee may not in fact be redundant and (b) the purpose of a reasonable adjustment is to keep an employee in work and not to make provision for her to leave work.”

Ms Hill was awarded a compensation payment for injury to feelings and the EAT has invited the ET to reconsider the earlier recommendation made, in respect of an appropriate undertaking.

For advice or more information, please contact Katherine Dakers at [email protected] or on 07715 060 293.

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