A bridge too far, or not far enough? – a recent decision of the UK EAT provides insight for employers in determining what may be considered a reasonable accommodation.
While Daly v Nano Nagle School (“Nano Nagle”) remains the leading Irish case, employers will still be grappling with how to identify potential accommodations and assess whether or not they would give rise to a disproportionate burden. Such an assessment must be undertaken in the context of the organisation as a whole and not just in relation to the employee’s team or department. A recent UK EAT decision provides further insight into what may be considered to be a reasonable accommodation in a suitable case.
Hill v Lloyds Bank (UKEAT/0173/19/LA & UKEAT/0233/19/LA), on its unusual facts, appears to impose an even more onerous obligation on the employers.
Ms Hill, had been employed by the respondent for over 30 years (and remains employed as an Analyst and Business Architect). She was out of work between July 2016 and October 2017 on sick leave caused by stress, which she asserted was caused by bullying and harassment from two colleagues, M and B (although a grievance she brought against M in relation to these allegations was not upheld). Upon her return to work, Ms Hill did not want to work with M or B and the feeling was mutual on their part. However, Ms Hill was anxious that in future she may be required to do so. On this basis, she sought an undertaking from the employer to the effect that she would not have to work with or report to either M or B; and that, if business demands left the employer with no practical alternative, the employer would offer her a severance package equivalent to what she would have received on redundancy.
The employer declined to give such an undertaking, stating that while some efforts could be made to ensure the parties would not have to work together in future, it could not be guaranteed. Ms Hill brought a claim of failure to make reasonable adjustments, the UK equivalent to ‘reasonable accommodation’ as provided for in Ireland by Section 16 of the Employment Equality Acts 1998-2015.
It was accepted that Ms Hill had a disability, that of reactive depression. She argued that she was placed at a substantial disadvantage compared to a person without a disability in that she was in a state of constant fear, worry and stress that she may be required to work with M or B, which in turn exacerbated her physical and mental symptoms. Ms Hill had not been required to work with either M or B since her return to work and they were in fact, based in physically different locations.
The Employment Tribunal (“ET”) upheld her claim. It found that the respondent had a practice of providing only words of comfort, and that this practice placed Ms Hill at a substantial disadvantage because she was working in fear. The ET found that it would have been reasonable for the employer to provide the undertaking proposed by the appellant. In addition to awarding compensation for injury to her feelings (in the amount of £7,500), the ET initially made a recommendation requiring the respondent to undertake to ensure that the appellant would not work or interact in any capacity with M or B and, in the event that this was not possible, that it would ‘explore suitable alternative employment’ with her and further, if that failed, to use its ‘best endeavours’ to ensure that she could leave with a severance package (the “Original Recommendation”).
When invited by both sides to reconsider, the ET set aside the Original Recommendation, noting that it was inappropriate to make a recommendation covering remuneration and that it was not possible to specify a period of time for compliance with the recommendation or to specify the period during which it would apply in the future.
The employer appealed against the liability decision and the Original Recommendation; Ms Hill appealed against the reconsidered decision of the ET and against the decision to anonymise the names of M and B.
The appeal was allowed, with the exception of the respondent’s appeal on liability. The EAT rejected the employer’s argument that it was unreasonable for it to commit to making a substantial severance payment to Ms Hill at a time in the future when a redundancy situation may not have arisen and on the basis that the purpose of a reasonable adjustment (or accommodation) is to keep employees at work. The EAT found there was no reason this commitment could not be made as the legislative purpose was to provide special benefits to employees with disabilities and the purpose of the accommodation the subject of the case, was to provide the appellant with a “backstop” enabling her to stay at work without fear.
The EAT agreed that the Original Recommendation should be set aside on the basis that it was vague and would have required Ms Hill, as well as the employer , to explore options for alternative employment. The EAT went on to hold that the ET erred in providing no recommendation at all and remitted the question to the ET as to what recommendation was appropriate in the circumstances. The EAT saw no problem with placing a time limit on the giving of an undertaking or to its remaining in place indefinitely.
The EAT also held that once the ET made the decision that it might be appropriate to anonymise the names of M and B, it should have invited submissions before deciding to do so and remitted this point to the ET for consideration.
In this case, the employee worked in a different office to M and B, her grievance against M was not upheld, and it was still considered to be a reasonable adjustment for the employer to provide her with a formal undertaking. This might raise concerns for employers in relation to the expectation placed upon them in providing reasonable accommodation to employees with disabilities, whose grievances have not been upheld and who maintain it is detrimental to them to continue working with certain colleagues, in particular, given the likelihood that such an accommodation will need to continue on an indefinite basis. However, the EAT did concede that an undertaking will not be required in all cases and noted that employers who take reasonable steps to assuage employee concerns early on may prevent cases from escalating.
Although not mentioned in the judgment of the EAT, the EAT might not have considered such an undertaking to be reasonable in respect of a smaller employer and the size and resources of a respondent such as Lloyds would be considered as a relevant factor by the WRC in a similar case in this jurisdiction. Our advice to employers on how to deal with requests for reasonable accommodation remains the same (view this article here).