Taking steps to avoid or reduce the impact of discrimination

When a discrimination claim is successful, as well as being able to order compensation for injury to feelings and financial losses, employment tribunals have the power to make a recommendation that, within a specified period, the employer take specific steps to avoid or reduce the impact of the discrimination. A common example is a recommendation that the employer provide an agreed reference.

Tribunals should not usually recommend that a victim of discrimination should have their pay increased or that they should be awarded a new contract because losses arising from discrimination should be dealt with by way of compensation.

This has led many businesses, when faced with a discrimination claim, to think that recommendations do not have a direct financial consequence. However, as the case of Hill v Lloyds Bank shows, this is not accurate.

In this case, the Employment Appeal Tribunal decided that a recommendation can include making an employer undertake to pay a redundancy payment to someone who is not redundant.

The claimant, in this case suffered with depression, allegedly caused by bullying and harassment by two colleagues. When she returned from sick leave, she asked her employer to guarantee that either she would not be required to work with them or that she would receive severance equivalent to an enhanced redundancy payment.

The employer did not give this guarantee and the claimant brought a claim for disability discrimination on the basis that this was a failure to make reasonable adjustments.

The tribunal and the EAT agreed that the employer’s practice was not to give such promises and this had put the claimant at a substantial disadvantage compared to a non-disabled person because it caused her anxiety and fear. The finding was that giving the claimant the guarantee she had requested would have reduced that fear and it would have been reasonable for the employer to do so.