Claimant was disabled in that she suffered from a reactive depression which she said resulted from bullying and harassment at work. On her return to work after a period of sick leave she sought an undertaking from her employer R that they would not require her to work with the two colleagues concerned and, if at a later stage there was no alternative, that she would be offered a severance package equivalent to that provided on redundancy. R refused to give any undertaking to that effect.
The EAT held that the ET had been entitled to find for her on a claim of disability discrimination based on a failure to make reasonable adjustments on the following grounds:
(a) that on the facts R had a ‘practice’ of not giving firm undertakings in circumstances like these;
(b) that that practice had put Claimant at a substantial disadvantage in comparison with others not suffering a disability because she suffered a level of anxiety and fear about the possibility that she would be required to work with the colleagues in the absence of an undertaking which a non-disabled person who had been bullied and harassed would not have;
(c) that the giving of an undertaking would have alleviated the disadvantage because it would have alleviated that fear;
(d) that it would have been reasonable for Respondent to give a firm undertaking in the form requested.
The EAT also held that there was no reason in principle preventing the ET, having found for the C on this basis, from making a recommendation under section 124(3) EqA 2010 requiring R to give a written undertaking along the same lines. The question of a recommendation would therefore be remitted to the ET.
The ET had anonymised the two colleagues concerned in their judgment but without seeking representations, giving any reasons or apparently considering the relevant law (rule 50 of the ET rules and Fallows v News Group [2016] IRLR 827; that issue was also remitted to be decided by the ET.
[2020] UKEAT 0173 – 19 – 0603
Bailii
England and Wales
Updated: 16 October 2021; Ref: scu.653270 br>