Recent case suggests a reasonable adjustment may take the form of an undertaking.
When an employer is subject to the duty to make reasonable adjustments under the Equality Act 2010 (EqA) it can be tricky to determine precisely whether an adjustment is 'reasonable' to make. The main factors which determine if an adjustment is reasonable are the extent to which it is practicable, the costs of implementation and how it will impact on the employer's activities. These are assessed in the context of the employer's size and financial and other resources. The tribunal will also consider whether adjustment would actually help the employee to overcome the relevant disadvantage and enable them to remain in the role.
Compliance with the duty to make reasonable adjustments often involves the employer and employee working together to make suggestions about how the employee's significant disadvantage due to a disability can be overcome. Typically, adjustments will focus on changes to the tasks undertaken by the employee, the place and times of work, and the provision of special equipment, but a recent case presented an employer with a more unusual proposal from their employee.
Mrs Hill had been employed by the bank for more than thirty years when she had an extended period of sick leave due to stress, which she said was caused by bullying and harassment she received at work from two of her managers.
Mrs Hill and her managers agreed that they did not want to work with each other again and Mrs Hill returned to work. However, on her return Mrs Hill was anxious that at some point in the future she may have to work with the same managers again. This caused her to feel dread and fear such that she felt physically sick. The prospect of working for one of the managers left her in a constant state of fear, which left her feeling exhausted.
As a result, Mrs Hill's union representative requested an undertaking from the bank that Mrs Hill would not at any point in the future be required to work with or under the two managers, and that if she did the bank would pay her the equivalent of a redundancy payment. The bank refused to give this undertaking on the grounds it was not possible to give any guarantees about whether Mrs Hill would work under either manager (both were senior and may one day rise to be regional or division managers, for example) and that no redundancy payment could be made because breach of the undertaking did not create a situation where Mrs Hill's role would be made redundant.
Mrs Hill brought a claim against the bank for failing to make reasonable adjustments on the grounds that it refused to give the undertaking. The tribunal at first instance upheld the claim and awarded a compensation sum to Mrs Hill. The bank appealed.
On appeal a key question before the EAT was whether the undertaking proposed was a 'reasonable' adjustment. The bank argued that it was unreasonable to give the undertaking as it would have been a 'special benefit' given for an indefinite period for an event that had not occurred and may not ever occur. As well as being unreasonable to agree to make a redundancy payment in a non-redundancy scenario, the bank said the arrangement was unreasonable because the arrangement would likely see Mrs Hill leave the bank, which went against the whole point of reasonable adjustments which was to keep individuals in work.
The EAT dismissed the bank's arguments and saw no reason why an undertaking of this type could not be given. The EAT pointed out 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 EAT also held that it could see no reason why a payment mechanism could not be used to reinforce the assurances being sought so that Mrs Hill could work with confidence that the bank was sufficiently motivated to prevent Mrs Hill from working for those managers again.
The EAT noted that many reasonable adjustments had financial implications and that in Mrs Hill's case, the overall purpose of the arrangement was to keep her in work.
The somewhat attention-grabbing conclusion that an undertaking secured by financial consequences for failure to meet the undertaking has been found to be capable of being a reasonable adjustment in principle may cause employers concern. However, the appropriate circumstances in which such an arrangement may arise appear to be narrow.
There are going to be limited circumstances in which a tribunal is likely to conclude that securing a promise that something will not happen by way of a financial incentive is reasonable. Indeed, the nature of the undertaking in this specific case means it is unlikely to succeed outside of large employers where staff might be managed in such a way as to avoid certain people from working together.
However, as the tribunals in this case have made clear, although the proposal in this case was something of a novel concept, such an arrangement shares many characteristics common to more usual reasonable adjustments in that it is a special arrangement which may last an indeterminate period of time that carries financial implications for the employer.
The takeaway point is that employers need to carefully consider any adjustments proposed by their employees. The simple fact that a proposal is out of the ordinary to what an employer might expect or have seen before will not automatically make it unreasonable.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.