In some (rare) cases, an undertaking as to future conduct (potentially including to pay a termination sum in certain circumstances) could be a reasonable adjustment for a disabled employee. Any requests for such undertakings will need to be considered carefully on a case by case basis.
In Hill v Lloyds Bank, the claimant's disability caused her significant anxiety and fear about the theoretical possibility of being required to work with specific colleagues (albeit that her grievance of bullying and harassment against them had not been upheld), including making her physically sick. The employer agreed that she would not be required to work with those individuals on her return, but she sought a formal undertaking to this effect and that the employer would offer her a severance package equivalent to redundancy if there was no alternative to working with those individuals. The employer's refusal to give this, on the basis that it had a practice of not giving formal undertakings in such situations, was held to be a failure to make a reasonable adjustment given the greater level of anxiety and fear this caused her due to her disability compared with how a non-disabled person would have reacted. The giving of the undertaking would have alleviated that fear and the EAT saw no reason why the undertaking could not encompass agreement to a 'backstop' financial payment as that would enable the claimant to return to work without fear as to the future.
The EAT did concede that this type of undertaking might only rarely be required and that more informal steps to assuage an employee's reasonable concerns at an early stage might prevent the request escalating.
Employers may be understandably concerned by this judgment. However, such a claim would presumably only be feasible where the employee can show that their disability caused them to suffer significantly more anxiety about the theoretical future possibility than the level of concern many non-disabled individuals might well feel in this type of situation. Although not mentioned in the EAT judgment, the size and resources of the employer were probably also relevant (in that there was no suggestion that the large employer here would have had any real problem ensuring the individuals did not work together again); such an undertaking might not be a reasonable adjustment for a smaller employer.
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