Labour & European Law Review Weekly Issue 347 27 November 2013
Under the Equality Act, where a provision, criterion or practice (PCP) places someone who is disabled at a substantial disadvantage compared to someone who is not disabled, employers are required to make reasonable adjustments. In Croft Vets Ltd and ors v Butcher, the Employment Appeal Tribunal (EAT) held that a reasonable adjustment could include paying for private medical treatment.
Ms Butcher, who started work as a receptionist in 1996, was promoted to the post of finance and reception manager in 2002. In November 2008, she took on added responsibilities when the practice opened a new hospital.
In March 2010, the employer met with Ms Butcher about her failure to accurately report on a substantial increase in the firm’s bad debt position and told her to concentrate on debt collection. On 29 April, two of the directors held another meeting with her, after they learned from other employees that she was sitting in her office, crying. She went off sick with depression on 4 May.
The employer referred Ms Butcher to a private consultant psychiatrist, Dr Parry, on 3 August 2010. He diagnosed a severe depressive episode triggered by work related stress and recommended the employer pay for psychiatric services to assist her return to work. However, the company failed to act on his report. Ms Butcher resigned on 23 November, stating that the employer had ignored Dr Parry’s diagnosis and recommendations and claimed she had been discriminated against.
She brought claims of disability discrimination for failure to make reasonable adjustments and constructive dismissal.
In respect of the failure to make reasonable adjustments, the tribunal held that the PCP was that “she should be able to return to work and perform the essential functions of her job”
It also found that she would be placed at a substantial disadvantage if she tried to fulfil the essential functions of her role. Therefore the failure to pay for the private therapy and engage with her during her absence amounted to a failure to make reasonable adjustments.
The employer appealed, arguing that it was outside the scope of reasonable adjustments to require an employer to pay for private medical treatment.
The EAT found that, having identified the correct PCP, the tribunal was right to find that the employer had failed to make reasonable adjustments by not implementing the psychiatrist’s recommendations.
As the adjustments related to her job and were to help her deal with the substantial disadvantage of fulfilling the PCP, the issue was not “payment of private medical treatment in general, but, rather, payment for a specific form of support to enable [her] to return to work and cope with the difficulties she had been experiencing at work”.
There were reasonable prospects that if the employer had followed Dr Parry's advice and adopted the reasonable adjustments, they would have been successful.
In finding that the adjustments were within the scope of the legislation, the EAT noted that the Code of Practice in force at the time included the example of a company who paid for a mentor (and time off to see the mentor) for a disabled man returning to work after six months’ absence due to a stroke.
This decision seems to extend the duty to make a reasonable adjustment to require the employer to pay for medical treatment where the treatment would remove the substantial disadvantage and enable a disabled worker to return to work.