Is there a new remedy for disabled employees?

In discrimination cases Employment Tribunals can not only make financial awards but they can also make “recommendations” that employers take certain steps.

In the recent case of Hill v Lloyd’s Bank, it was held that a discrimination recommendation could include requiring an employer to give an undertaking to a disabled employee that they would not require her to work with two particular colleagues and if there was no alternative, that they would offer her a redundancy payment despite not being made redundant. This update considers the case in more detail.

Background

Mrs Hill, had been employed by Lloyd’s for over 30 years. In 2016 and 2017, she was on sick leave due to depression, which she said resulted from bullying and harassment at work by two particular colleagues. Mrs Hill was disabled within the meaning of the Equality Act 2010. On her return to work, she sought an undertaking from Lloyd’s that she would not be required 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.

Lloyd’s refused and Mrs Hill brought a claim that Lloyd’s had failed to make reasonable adjustments for her disability as required by section 20 of the Equality Act 2010.

Decision

Mrs Hill’s claim succeeded on four main grounds:

1. Lloyd’s had a practice of not giving firm undertakings in circumstances such as these;
2. The practice had put Mrs Hill at a substantial disadvantage in comparison with others not suffering a disability. This was because she suffered from high levels of fear and anxiety about the possibility that she would be required to work with the particular colleagues in the absence of the undertaking;
3. The giving of the undertaking would have alleviated the disadvantage because it would have reduced that fear; and
4. It would have been reasonable for Lloyd’s to give a firm undertaking in the form requested. The fact that this would amount to a special benefit could not be an objection as giving special benefits was inherent in the requirement for reasonable adjustments.

Practical considerations

This decision is likely to have come as a surprise to employers. Although the Tribunal held that recommendations to provide undertakings would only arise in “suitable (perhaps rare) cases”, it strongly demonstrates the breath of the steps that employers are required to take in cases of reasonable adjustments for disability and that the direction of travel appears to be broadening such steps.

If you wish to discuss this topic further or have any other questions, please contact Linky Trott or any member of the Employment team.

 

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