Can a discrimination ‘recommendation’ include making an employer undertake to make someone redundant?

Yes, says the EAT in Hill v Lloyds Bank.

The Claimant was disabled by depression which she said was a reaction to bullying and harassment by two colleagues. On return from sick leave she sought an undertaking from her employer that she would not be required to work with them. She also asked that if there was no alternative to working with them her employer would undertake to offer severance.

She brought a claim for disability discrimination based on a failure to make reasonable adjustments. The ET found for her and the EAT agreed as follows:

a)      it was a “practice” for the employer not to give such undertakings;

b)      this “practice” had put the Claimant at a substantial disadvantage that a non-disabled person would not have had because it caused her anxiety and fear;

c)       the undertaking would have alleviated the disadvantage by reducing that fear; and;

d)      it would have been reasonable for the employer to give the undertaking.

The EAT also held there was no reason in principle preventing the ET from making a section 124(3) Equality Act 2010 recommendation requiring the employer to give such a written undertaking. This question was remitted to the ET.

This blog by Karen Jackson first appeared in Daniel Barnet’s Employment Law Bulletin.