Would it ever be a reasonable adjustment for an employer to undertake to give an employee a severance package?
In Hill v Lloyds Bank plc the Employment Appeal Tribunal (EAT) ruled on whether a Tribunal was able to make a recommendation in a successful reasonable adjustments claim that an employer give an undertaking that it would not require the employee to work with certain colleagues and, if it did, would offer her a severance package equivalent to a redundancy payment.
Mrs Hill has been employed by Lloyds Bank plc for over 30 years. She took a lengthy period of sick leave for stress, which she claimed to have been a result of bullying and harassment by two of her colleagues, anonymised as Ms M and Mr B. It was accepted that Mrs Hill was disabled, suffering from reactive depression.
Upon her return to work she did not want to work with Ms M and Mr B, and the feeling was mutual. Although she was moved to work elsewhere, her condition was exacerbated by the thought that she would have to work with either of them in the future.
Mrs Hill make two requests to Lloyds. Firstly, she sought an undertaking that she would not have to work with them or under them. Secondly, if that could not be avoided, Lloyds would offer her a severance payment equivalent to what she would have been entitled to receive on redundancy. Lloyds’ response was that, while it could make some efforts to ensure this did not happen, it was not possible to give an absolute guarantee. It also told her that it was not possible to offer her a redundancy severance package in this scenario, as her role would not be redundant.
Mrs Hill brought a claim for failure to make reasonable adjustments.
The Employment Tribunal upheld the claim. It found that Lloyds’ practice of not giving undertakings in such situations, only words of comfort, placed Mrs Hill at a substantial disadvantage because it meant her suffering a level of anxiety and fear which a non-disabled person would not. Giving an undertaking would have alleviated this disadvantage and it would have been reasonable for Lloyds to do so.
On appeal, the EAT held that the refusal to give an undertaking amounted to a provision, criterion or practice (PCP), and was not a one-off decision. It also rejected Lloyds’ argument that it was unreasonable to commit to a substantial severance payment; the purpose of the reasonable adjustment should be to keep an employee in work, not to agree to assist her to leave. The EAT said that it was inherent in the undertaking sought that it would enable the employee to continue to work without fear.
This decision is quite unusual and highlights the infinite range of potential adjustments that may be consider reasonable for an employer to make. Understandably, it may give employers cause for concern as to the adjustments that could be considered reasonable for disabled employees who have raised grievances and do not wish to work with certain colleagues.
Employers must ensure that any genuine concerns raised, particularly by disabled employees, are given thorough consideration. Employers should try to resolve issues early to avoid escalation of such issues.
Although it was not mentioned in the EAT judgment, it is quite likely the size and resources of Lloyds was a very relevant factor and it may not be reasonable for a smaller employer to give such an undertaking.
For advice or assistance on any issues please contact any member of the Employment Team.