A reasonable adjustment?

In this case, the Employment Appeal Tribunal ("EAT") confirmed that it would have been a reasonable adjustment for the employer to give an undertaking to a disabled employee (who claimed to have been bullied/harassed by two colleagues) that she would not be required to work with the individuals going forward and that, if there was no alternative, it would offer her a severance package equivalent to her entitlement on redundancy.

Ms. Hill had been employed by Lloyds Bank (the “Bank”) for over 30 years. She went on sick leave between July 2016 and October 2017 for stress, which she claimed was caused by bullying and harassment by two colleagues. Ms. Hill further claimed that the prospect of working with the employees upon return from sick leave left her feeling physically sick and exhausted, and sought an undertaking from the Bank that it would not rearrange roles or duties in a way that would require her to work with either individual. In the event that there was no practical alternative, Ms. Hill further sought an undertaking that the Bank would offer her a severance package equivalent to the amount she would have received on redundancy. 

Whilst the Bank confirmed that it would try and ensure that Ms. Hill would not have to work alongside the individuals, it refused to give an absolute guarantee. The Bank also stated that it would not be possible to offer a redundancy or severance package if this scenario arose, given that her role would not actually be redundant. 

Ms. Hill claimed that the Bank had failed to make reasonable adjustments to eliminate a substantial disadvantage suffered by her because of her disability. The parties accepted that Ms. Hill was disabled by reason of her reactive depression, and Ms. Hill argued that she was placed at a substantial disadvantage compared to a non-disabled person in that she was in a state of "constant fear, worry and stress" regarding the prospect of working with the two individuals. 

The Bank argued that committing to a severance payment on termination of Ms Hill's employment would not be a reasonable adjustment as the purpose of such adjustments is to keep an employee in work rather than make provision for her to leave.  However the EAT held that the undertaking would have alleviated Ms. Hill’s fear and assisted in keeping her in work, which is the fundamental purpose of a reasonable adjustment. Further, the fact that any severance payment would amount to a special benefit could not be an objection: the granting of special benefits is inherent in the reasonable adjustments process.  It is notable that the adjustment argued for was held to be reasonable, notwithstanding that Ms. Hill's complaint of bullying and harassment against her two colleagues had not, in fact, been upheld by the Bank.

This case underlines the need for employers to give careful consideration to adjustments requested by disabled employees to facilitate their return to work or retention in employment.  Where a particular adjustment is refused, the employer must ensure that it has cogent reasons for determining that the adjustment is not reasonable.