SUMMARY: An Employment Appeal Tribunal confirms that a reasonable adjustment would have been for the employer to pay for psychiatric treatment for an employee
The Equality Act 2010 imposes a duty on employers to make reasonable adjustments to help disabled employees in certain circumstances. This includes where a disabled person is placed at a substantial disadvantage by an employer’s provision, criterion or practice (PCP). The PCP in this case was that the employee be able to return to work performing the essential functions of her role.
This case was decided under the Disability Discrimination Act 1995 and the code of practice in force in 2010, but the Equality Act 2010, now in force, is not materially different.
Facts of this case
Mrs B, a reception and finance manager, went off sick with work-related stress and severe depression on 4 May 2010 and never returned to work.
Her employer asked for her to be referred to a private consultant psychiatrist, Dr P, who she saw in August 2010. Dr P suggested specialist cognitive behavioural therapy and 6 psychiatric sessions at a cost not exceeding £750, saying that there would be no guarantee that she would be able to return to work but he was hopeful that would be the outcome.
The employer asked Dr P further questions, to which he responded in October and then the employer asked more questions. Before Dr P responded to these further questions, Mrs B resigned on 23 November 2010, stating that the employer had ignored Dr P’s recommendations and claiming disability discrimination (failure to make reasonable adjustments) and unfair constructive dismissal.
The Employment Appeal Tribunal’s (EAT) decision
The EAT upheld the Employment Tribunal’s decision that the employer had failed to make reasonable adjustments by failing to refer Mrs B to private psychiatric services and/or counselling by October 2010 at the latest.
The EAT considered that the reasonable adjustments were job-related because they involved payment for a specific form of support to enable Mrs B to return to work and to cope with the difficulty she had been experiencing at work.
It was not sufficient that the employer had offered Mrs B a different job at a substantially reduced salary.
The EAT also noted that at no time between 19 August and 23 November 2010 did the employer take any steps to resolve with Mrs B her concerns. Instead, there was effective silence from July 2010.
What does this mean for employers?
Employers should be aware that both mental and physical illnesses can constitute disabilities. If there is a possibility of a disability and suggestions are made as to how the employee can be helped, even if it is uncertain that the assistance will result in the employee being able to return to work, these should be given serious consideration.
This consideration should include consultation with the employee, who should not be left without communication once they are on long term sick leave. The employer should have very good reasons for not making suggested reasonable adjustments and should be aware that such adjustments can include paying for private medical treatment, even if this may be available on the NHS.
Case: Croft Vets Ltd v Lynda Butcher (UKEAT/0430/12/LA)
Hazel Robbins, Solicitor
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This update is for general guidance only and does not constitute definitive advice.