In the case of Mrs S Hill v Lloyds Bank PLC , the Employment Appeal Tribunal has held that an undertaking by an employer to keep an employee away from bullying managers is a reasonable adjustment.
Employers have a statutory duty to make reasonable adjustments for disabled employees under the Equality Act 2010, section 20. Section 20 is supplemented by Schedules 8 and 21 of the Equality Act. Schedule 8 sets out specific provisions regarding the duty in the context of employment and occupation, while Schedule 21 contains supplementary provisions.
Mrs Hill was employed for over thirty years as an Analyst and Business Architect by Lloyds Bank. She suffered from reactive depression which she said was a result of bullying and harassment by two of her managers at work, and was off sick from 4th July 2016 to 9th October 2017 with stress.
Mrs Hill, Ms M and Mr B agreed that they no longer wished to work together so when she returned to work, she went to the Bristol Office where she was happy. Ms M worked from the Glasgow office and Mr B worked from London. Mrs Hill was worried that she might have to work with them in the future. She said that the thought of working with Mr B filled her with absolute dread and fear so that she felt physically sick. The prospect of working with Ms M left her in a constant state of fear which made her exhausted.
Mrs Hills trade union representative wrote to Lloyds Bank asking for an assurance that she would not be placed ‘under the control of people with whom she cannot work’. Lloyds Bank then set up a meeting with an Issue Resolution Manager who was an experienced mediator. This meeting took place on 24 April 2018. Sadly, the Issue Resolution Manager passed away the next day. On 27th April 2018, Mrs Hills trade union rep wrote to Lloyds Bank again asking for an undertaking that at no point in the future would she be required to work with or under the management of either Ms M or Mr B, and that if she did the bank would pay her the equivalent of a redundancy payment. Lloyds Bank said no because they could not give any guarantees about whether Mrs Hill would work under either manager and they could not make a redundancy payment because breach of the undertaking would not make her redundant.
In the Employment Tribunal (ET)
Mrs Hill brought an ET claim against Lloyds Bank for failing to make reasonable adjustments on the grounds that they had refused to give the undertaking that she would no longer work with Ms M and Mr B. The ET upheld her claim, awarded her £7,500.00 for injury to feelings and made a recommendation that Lloyds give the undertaking.
Lloyds Bank appealed to the Employment Appeal Tribunal. The grounds of appeal are in paragraphs 8-16 of the judgment.
In the Employment Appeal Tribunal (EAT)
(a) that on the facts Lloyds Bank had a “practice” of not giving firm undertakings in circumstances like these;
(b) that that practice had put Mrs Hills at a substantial disadvantage in comparison with others not suffering a disability because she suffered a level of anxiety and fear about the possibility that she would be required to work with the colleagues in the absence of an undertaking which a non-disabled person who had been bullied and harassed would not have;
(c) that the giving of an undertaking would have alleviated the disadvantage because it would have alleviated that fear;
(d) that it would have been reasonable for Lloyds Bank to give a firm undertaking in the form requested.
The EAT also held that there was no reason why the ET could not make a recommendation under section 124(3) of the Equality Act 2010, for Lloyds Bank to give a written undertaking along the same lines.
The EAT said that by their very nature reasonable adjustments are often indefinite (e.g. a permanent change to working environment or place of work) and amounted to ‘special benefits’. The Court could see no reason why a payment mechanism could not be used to reinforce the assurances that Mrs Hill wanted so that she could work with confidence that the bank was sufficiently motivated to prevent her from working for those managers again.