The Employment Appeal Tribunal (EAT) has held in Hill v Lloyds Bank plc that there is no reason in principle why tribunals cannot require employers to give an employee a guarantee that they do not have to work with someone who has bullied them. In the event that the undertaking becomes unsustainable, a financial package would be a reasonable adjustment.
Ms Hill, who had worked for the bank for more than 30 years, took a long period of sick leave as a result of stress which she said was caused by harassment and bullying by two managers.
It was agreed when she returned to work that she would not have to work with either of the managers, although the bank made clear that it could not guarantee that she would not have to work with them at some point in the future. She asked for a severance package equivalent to that provided on redundancy if at a later stage there was no practical alternative but to require her to work with or report to the managers. However, the bank refused to provide this guarantee.
She brought a claim of disability discrimination on the basis that the bank had refused to make a reasonable adjustment.
Upholding her complaint that the refusal to provide the undertaking constituted a failure to make reasonable adjustments, the tribunal made an award of compensation of £7,500 for injury to feelings as well as a recommendation that was wider than the one proposed by Ms Hill.
This said that the bank should provide an undertaking that she should not have to work or interact in any capacity with the two managers in question. If at some point that became impossible, however, then the two parties should explore suitable alternative employment. If that failed, then the bank should use “its best endeavours” to ensure that Ms Hill was given a severance package equivalent to the redundancy payment scheme applicable at the time of her departure.
Having been asked by the bank to reconsider the recommendation, the tribunal set it aside altogether. Lloyds then appealed on the discrimination decision while Ms Hill appealed against the decision to set aside the recommendation.
The EAT held that the tribunal had been entitled to find for Ms Hill in terms of her claim of disability discrimination based on a failure to make reasonable adjustments. It found that:
- The bank had a “practice” of not giving firm undertakings in circumstances like these.
- As Ms Hill suffered a level of anxiety and fear about potentially having to work with the two colleagues in the future, whereas a non-disabled person who had been bullied and harassed would not have to suffer that anxiety, the practice had put her at a substantial disadvantage in comparison with a non-disabled colleague.
- Given that the undertaking would have alleviated the disadvantage because it would have alleviated Ms Hill’s fear, it would have been reasonable for the bank to have given a firm undertaking in the form requested.
Rejecting the bank’s arguments that it was not appropriate to include financial considerations in a recommendation, the EAT held that there was no reason in principle why tribunals could not make a recommendation along these lines as the whole point of the reasonable adjustments regime was to benefit disabled employees.
Nor did it have any truck with the bank’s argument that the undertaking would have to be time limited. Firstly, there was no reason why a time limit could not be placed on it and secondly, once the required steps had been taken, they could remain in place indefinitely.
The EAT therefore remitted the question of what should be included in the recommendation to the tribunal for them to consider further.