This week’s case looks at when a business decision might amount to a “provision, criterion or practice” for the purposes of a disability discrimination (reasonable adjustments) claim under the Equality Act 2010, and sheds some light into how employers might be caught out by the tricky rules in this area.
Mrs. Hill was an employee of Lloyds Bank. She had been off work for over a year due to suffering from depression, something she alleged to have been caused by the bullying behaviours of her two managers.
Upon returning to work, she sought an undertaking from her employer that she should not have to work with these two managers, and if this was not feasible, that she should be given a severance package equivalent to a redundancy payment.
Lloyds were unwilling to commit to this request in a legal capacity but did endeavour to separate Mrs. Hill and her two former managers on a more informal basis.
Despite this informal arrangement, Mrs. Hill remained dissatisfied, arguing that due to the lack of a concrete undertaking (a legal promise) by her employer, she lived in a state of constant fear and stress, as it remained a possibility that Lloyds could force her to work with her old managers again.
This, she argued, amounted to a failure to make reasonable adjustments under the Equality Act 2010.
The law on reasonable adjustments states that where an employer’s “provision, criterion or practice” (PCP) puts a disabled employee at a substantial disadvantage in comparison with a non-disabled employee, the employer has a duty to make reasonable adjustments to that PCP in order to remove the disabled employees disadvantage.
Mrs. Hill argued that Lloyds’ failure to grant an undertaking amounted to a “provision, criterion or practice” as it was the bank’s policy not to give such promises (rather than this being a one-off, isolated incident), and that this policy put her at a substantial disadvantage in comparison with non-disabled employees (as employees without mental health problems would not have been as worried about the prospect of working with their former bosses as she was).
The tribunal was convinced by Mrs. Hill’s arguments and held Lloyds Bank liable for a failure to make reasonable adjustments. They awarded her compensation for injury to feelings, as well as recommending that they grant Mrs. Hill the undertaking she had originally sought.
Lloyds Bank asked the tribunal to reconsider, prompting them to revoke their recommendation and provide no alternative. Mrs. Hill then appealed this decision to the Employment Appeals Tribunal.
The Employment Appeals Tribunal agreed with Mrs. Hill, and have sent the matter back to the tribunal for reconsideration, suggesting they could not understand why the original tribunal didn’t just recommend Mrs. Hill’s original demands, as ultimately these were perfectly reasonable.
When dealing with a disabled employee, employers ought to be cautious in their choice of words. If Lloyds Bank had presented their decision to refuse the grant of an undertaking as a one off occurrence, rather than as a general policy (which allowed it to amount to a provision, criterion or practice) then they would have been able to escape liability as a one off occurrence is not continuous enough to amount to a PCP.