Employers are under a duty to make reasonable adjustments to help disabled employees return to, or remain at work.
Proposed adjustments might be straightforward to consider, for example when they relate to a medically advised phased return to work or change to working hours. However, this is not always the case.
The recent case of Hill v Lloyds Bank serves as a useful reminder of the broad scope of what might be considered a reasonable adjustment, depending on the individual's circumstances.
Hill v Lloyds Bank
The Claimant was a long standing employee of Lloyds Bank. She was disabled by depression, which she claimed resulted from bullying and harassment at work. She asked for an undertaking that she would not be required to work with two specific colleagues in order to preserve her health. She also asked that if at any later stage working together became necessary, she would instead be offered a severance package equivalent to a redundancy package.
The bank refused to grant the undertaking. The bank's practice was not to give binding undertakings, but to give words of comfort around using best efforts in response to such a request. The bank also considered that as the employee might not be redundant in future, she should not automatically access a financial package. The Claimant brought a disability discrimination claim based on the bank's failure to grant the undertaking.
The Claimant's claim succeeded both at the Employment Tribunal (ET) and the Employment Appeals Tribunal (EAT). The bank's practice of not giving binding undertakings put the Claimant at a substantial disadvantage compared to non-disabled people. Without the undertaking she suffered anxiety and fear from which her non-disabled colleagues did not suffer. The bank could have alleviated the disadvantage by providing the undertaking, and it would have been reasonable to do so. The EAT held that the main purpose of the proposed adjustment was to enable the Claimant to remain at work, as the financial package would only kick in if it was no longer possible for her to work separately from the two colleagues. In addition, the EAT held that neither the indefinite nature of the undertaking, nor the financial value attached to part of the undertaking, was enough to render it unreasonable.
The case has been remitted to the Employment Tribunal in order to consider making a recommendation to require the bank to give the undertaking.
It is always sensible to obtain medical evidence and advice on an employee's health in order to help reach a decision on reasonable adjustments. The question of whether a proposed adjustment is reasonable should be considered based on the individual's particular circumstances, rather than based on a company-wide policy. Where a policy puts the employee at a disadvantage, it may be reasonable to offer flexibility in order to support the employee. Declining to implement a proposed adjustment because it is indefinite in nature and/or because it has financial implications for the employer is unlikely to be sufficient.
Originally published 10 July 2020.
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