Implications for practitioners

The EAT in this case found that giving an employee an undertaking can be a reasonable adjustment for an employer. The EAT also provided insight into what recommendations ETs can give pursuant to s124 Equality Act 2010, ruling that there is no valid objection to the making of recommendations with financial implications. The EAT also set out some guidance on how recommendations should be formulated.

Facts

The claimant (SH) was disabled suffering from reactive depression which she alleged arose from bullying she experienced at the hands of two line managers whilst working for the respondent (R). After a period of sick leave it was agreed that SH would return to work in a separate office away from the managers. However, SH was anxious at the possibility of having to work with the managers again and the thought of this prospect caused her severe distress and physical sickness.

SH therefore requested an undertaking from R that at no point in the future would she be required to work with the managers. SH requested a further undertaking that, if there was no alternative, she would be offered a severance package equivalent to a redundancy payment to terminate her employment. R stated that it could not provide an absolute guarantee that she would not work with the managers in the future. Further, it would not offer a redundancy payment as an alternative as SH would not be made redundant.

Employment Tribunal

SH brought a claim for failure to make reasonable adjustments on the basis that:

• R had a practice of not giving undertakings in such circumstances
• which put SH at a substantial disadvantage of constant fear in comparison to others not suffering a disability
• the giving of the undertakings would have alleviated this disadvantage, and
• it would have been reasonable for R to provide the undertakings requested.

The ET found for SH on each of these points and upheld the reasonable adjustments claim. The ET also made a recommendation for R to give undertakings to:

ensure that the Claimant does not work or interact in any capacity with [the managers] and that in the event that this not possible that the Respondent and the Claimant explore suitable alternative employment with the Respondent and if this fails that the Respondent uses its best endeavours to ensure that the Claimant can leave the Respondent with a severance package equivalent to its redundancy payment scheme applicable at the time of her departure.

However the recommendation did not accord with the recommendation requested by SH. Upon reconsideration, the ET set aside the recommendation altogether on the basis that it was not appropriate to make recommendations relating to remuneration and it was not possible to place a time limit on the recommendation in this case.

Employment Appeal Tribunal

R appealed the ET decision to uphold the reasonable adjustments claim, and both R and SH appealed on the issue of the recommendation.

Appealing the reasonable adjustments finding, R submitted that not offering an undertaking was a one-off decision arising from R’s dealings with SH and not a provision, criterion or practice (PCP). The EAT rejected this argument on the basis that the ET made a finding of fact, based on evidence provided by R and one of its witnesses, that R had a practice of not giving undertakings that people would not have to work together.

R further appealed the ET decision on the aspect of substantial disadvantage. R submitted in its appeal that the root cause of the disadvantage of fear was the two managers as opposed to the PCP. R also submitted that the ET did not provide adequate reasons for the decision on this issue.

The EAT rejected this argument, stating that R’s original argument before the ET was that there was no substantial disadvantage and the ET had addressed this argument adequately in its judgment. R had argued that SH had no difficulties working day-to-day away from the managers and that the potential disadvantage of working for the managers had not yet happened. The ET disagreed with this, stating that the substantial disadvantage was the constant fear of the possibility of working for the managers.

R argued that it would be unreasonable to require the bank to give the undertaking to make a substantial redundancy payment at some time in the future because SH may not in fact be made redundant.

Further, R referred to the EAT decision in Tameside Hospital NHS Foundation Trust v Mylott [2011] UKEAT/0399/10/1304 in which it was stated that the purpose of a reasonable adjustment should be to keep an employee in work and not to make provisions for the employee to leave.

The EAT rejected this submission, finding that the purpose of the undertaking to make a redundancy payment if there was no alternative in the future was to enable SH to work without fear that the main undertaking to prevent her working for the managers would be breached. The second undertaking incentivised R to commit to the first undertaking and therefore did not conflict with the decision in Mylott. The fact the adjustment would amount to a special benefit was not a valid objection, as giving special benefits was inherent to making reasonable adjustments.

The EAT set out the problems with the ET’s original recommendation, namely that:

• there was no time limit on the requirement for R to give the undertaking
• there was no requirement that it should be  in writing
• the undertaking to ensure that SH did not interact with the managers in any capacity was too wide an undertaking to require
• the undertaking  required action by SH to seek alternative employment and it was not appropriate for R to make such an undertaking
•  the provision for the use of ‘best endeavours’  was vague.

The EAT then turned to the two reasons the ET had provided for revoking the recommendation on reconsideration. The first reason was that the recommendation included matters relating to remuneration which was not appropriate. The EAT found no valid objection to making recommendations with financial implications, citing the example of an adjustment to carry on an employee’s sick pay at a full rate.

The second reason was that it was not possible to specify a time period for application of, or compliance with, the recommendation. However, this was not a valid reason, as the time limit would have been on the giving of the undertaking. Further, the EAT had no concern with the recommended provisions remaining in place indefinitely as this is likely to be the nature of many straightforward recommendations, for example a change of place of work would continue indefinitely. The EAT also noted that if the undertaking was breached this would constitute a separate matter, for example it may give rise to a constructive dismissal claim or a contractual claim. The only concern for the ET would be whether the undertaking was given in compliance with the recommendation.

Comment

The EAT ruling provides clarity on a number of issues relating to undertakings being given by employers as reasonable adjustments. Its guidance on ET recommendations on employer undertakings and how these recommendations should be formulated is particularly useful. Significantly, the EAT held that there is no valid objection to the making of recommendations relating to remuneration.

This article was first published in the Discrimination Law Association Briefing 948 – 960. Written by Yavnik Ganguly – Paralegal, Employment and Professional Discipline Team.