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Is funding private medical treatment a reasonable adjustment?

Can an employer's duty to make reasonable adjustments in connection with a disabled employee require it to fund private medical treatment? Yes said the EAT in Croft Vets Ltd and others v Butcher.

Background

Under Section 20 of the Equality Act 2010 (EqA 2010) an employer is under a duty to make reasonable adjustments where it applies a provision, criterion or practice (PCP) that puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled.

In Kenny v Hampshire Constabulary [1999] the EAT held that reasonable adjustments must be "job-related".

Facts

Mrs Butcher was employed by Croft Vets Ltd (Croft) as a finance and reception manager at a veterinary practice from 1996 until her resignation in November 2010.

Mrs Butcher's role included a requirement to report bad debts owed to the practice – a duty which Croft believed that Mrs Butcher had failed to accurately fulfil. In March 2010 Croft instructed Mrs Butcher to concentrate solely on her debt collection duties. She was relieved of her other duties which were re-distributed. In a meeting with Mrs Butcher on 29 April 2010 Croft offered her two choices: to continue with her current job and take steps to improve her performance, or to narrow her job description further and receive a lower salary.

On 4 May, Mrs Butcher went off sick with depression and did not return to work.

In May 2010 Mrs Butcher's GP recorded that she had suffered from work-related stress for two years. In June 2010 Croft referred Mrs Butcher to a private consultant psychiatrist, Dr Parry. His report of 19 August suggested that it was predominantly work-related stress that had triggered the severe depressive episode with marked anxiety. Dr Parry considered that Mrs Butcher would require at least three to four months off work. In order to optimise her treatment, he recommended that the employer pay for Mrs Butcher to attend sessions with a Clinical Psychologist for treatment, including cognitive behavioral therapy (CBT). Dr Parry noted that there was no guarantee that Mrs Butcher's health would improve to the extent that she would be able to return to work. He assessed the prospects of her return as being 50/50. In October 2010, Croft wrote again to Dr Parry, asking further questions. He did not reply until January 2011.

On 23 November 2010, Mrs Butcher resigned. In her resignation letter, she pointed out that she had received no communication from her employer since she had met with Dr Parry and that Croft had not acted on his advice. She also claimed that her workload had caused her breakdown.

A Tribunal subsequently upheld Mrs Butcher's claims for disability discrimination (reasonable adjustments) and constructive dismissal. The Tribunal considered that Croft should have made the adjustments suggested by Dr Parry and funded further private treatment for Mrs Butcher.

Croft appealed to the EAT.

Decision

The EAT found that the tribunal had been entitled to find that Croft had applied a PCP that employees should be able to attend work and perform their roles. The EAT considered that this placed Mrs Butcher at a substantial disadvantage as a result of her stress and depression.

The EAT also found held that Dr Parry's proposed adjustments were "job-related" in line with Kenny v Hampshire Constabulary. The medical evidence suggested that Mrs Butcher was suffering from stress which was work-related. The EAT noted that Dr Parry's recommendation did not involve payment for private medical treatment in general, but rather for a specific form of support to help Mrs Butcher to return to work and to cope with her work-related difficulties. The proposal was aimed at helping Mrs Butcher to return to work and deal with the substantial disadvantage arising from the PCP. The EAT also found that Dr Parry considered that there were reasonable prospects that if the proposed adjustment were implemented then Mrs Butcher would have been able to return to work. 

Comment

Whilst this case marks a development in the EAT's interpretation of the employer's duty to make reasonable adjustments, employers should not be unduly alarmed by the decision. As the EAT itself pointed out, this case was not about an employer's obligation to fund private medical treatment in general.

Nevertheless, this decision is a clear statement by the EAT that the purpose of reasonable adjustments is to enable a disabled employee to return to work and to cope with their duties. Where private medical treatment may assist an employee, the employer may be under an obligation to fund this treatment. On the facts of this case, it was significant that work had been the predominant cause of Mrs Butcher's illness. Future cases in this area are likely to involve consideration of the employer's obligations where it is not so clearly responsible for an employee's health problems.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at October 2013. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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