Hill v Lloyds Bank Plc (DISABILITY DISCRIMINATION)

A failure to make reasonable adjustments may arise from an employer’s established practice of refusing firm undertakings, rather than from a single decision. A disabled employee may suffer a substantial disadvantage where that refusal leaves them in disabling fear that they will have to work with colleagues associated with their condition, even if the feared event has not occurred.

An undertaking, including a contingent severance benefit, may be a reasonable adjustment where it alleviates that fear and helps the employee remain in work. Under Equality Act 2010, an employment tribunal may in a suitable case recommend that the employer give such a written undertaking. Potential financial consequences or an indefinite future effect do not, in principle, prevent that remedy.

The claimant, who had reactive depression following alleged workplace bullying and harassment, returned to work but feared being required to work again with two managers. Her employer would make efforts to avoid this but refused an absolute undertaking and refused a contingent redundancy or severance package.

The Employment Tribunal upheld her reasonable-adjustments claim, awarded injury-to-feelings compensation, and made a recommendation. On reconsideration, it set the recommendation aside. The employer appealed the liability finding and the original recommendation. The claimant appealed the reconsideration decision and the Tribunal’s anonymisation of the two managers without submissions or reasons.

The central issues were whether the refusal of an undertaking was a PCP causing substantial disadvantage, whether the proposed undertaking was reasonable, and whether a recommendation requiring it could lawfully be made.

1. The employer’s appeal on liability was dismissed. The Employment Tribunal was entitled to find that the employer had a practice of not giving binding undertakings and instead offering words of comfort or best endeavours. That was a factual finding supported by the employer’s evidence.

2. The Tribunal’s reasoning on comparison and causation was terse but sufficient. It was entitled to find that, absent an undertaking, the claimant’s disability caused anxiety and fear that she might have to work with the two managers. A non-disabled person who had made, or alleged, bullying complaints would not suffer that disabling state of fear. The undertaking would alleviate the disadvantage because it would give the claimant the assurance she sought.

3. The proposed adjustment was capable of being reasonable. A reasonable adjustment may provide a disabled employee with a special, contingent benefit. The severance element was a backstop which reinforced the assurance that the claimant would not be required to work with the managers. Its purpose was to enable her to remain at work without fear, not to facilitate her departure.

4. The appeals concerning the recommendation were allowed. Under section 124 of the Equality Act 2010, there was no objection in principle to recommending that an employer give a written undertaking in a suitable, possibly rare, case. Financial implications, alternatives within the undertaking, and the possibility that its practical effect would continue indefinitely did not invalidate such a recommendation. The original recommendation was nevertheless defective in form and had properly been set aside. The question of a fresh recommendation was remitted to the Employment Tribunal.

5. The anonymity appeal was allowed. Before anonymising persons not party to the proceedings, the Tribunal should have invited submissions, considered rule 50, and given reasons. That issue was also remitted.

• Employment Appeal Tribunal: allowed the claimant’s appeals concerning the reconsideration decision and anonymity, and allowed the employer’s appeal to the extent that the original recommendation required reconsideration. It dismissed the employer’s appeal against liability.
• Employment Tribunal, London (South): by judgment sent on 12 February 2019, upheld the reasonable-adjustments claim, awarded £7,500 for injury to feelings, and made a recommendation. By reconsideration decision sent on 13 July 2019, it set the recommendation aside.