When private counselling is a reasonable adjustment under the Equality Act?

Tue, 03 Dec 2013

By Richard Adkinson

The case of Crofts Vets and others v Butcher 2013 UKEAT/0430/12/LA and UKEAT/0562/12/LA is perhaps an unusual but important illustration of how far the duty to make reasonable adjustments under disability discrimination legislation goes (now Section 20 of the Equality Act 2010).

Key findings

Mrs Butcher (B) was employed by the Vets as the reception manager and also as the finance manager.

Her employer Crofts Vets (C) had an appraisal system and there was plenty of opportunity to discuss problems that arose on an informal basis.

Over the years she was employed her responsibilities increased. Also, in 2008 her mother became ill and that impacted on B’s ability to perform her duties.

She succumbed to work-related stress and severe depression. This led to her taking sick leave.

C referred her to a private psychiatrist, Dr Parry (Dr P), in order to “to allow [them] to consider whether there are any steps we can take now to facilitate your return to work”.

Dr P suggested that C should consider funding further private psychiatric sessions, including cognitive behavioural therapy sessions, although he acknowledged that even with that additional treatment, there was no guarantee that B would improve enough to be able to return to work.

Having commissioned the report, C decided not to follow P's recommendation.

Tribunal ruling

B resigned and brought a case of disability discrimination. The tribunal found that C had failed to make reasonable adjustments by failing to fund private psychiatric services and counselling for B.

The EAT upheld the Tribunal’s decision on this point.

Implications

The idea that an employer should pay for an employee’s medical treatment is likely to have had employers in fear and caused the readers of certain rabid tabloids screaming to tear the Equality Act up. However, the EAT did not go this far. The EAT said at paragraph 40:

“What was recommended by Dr Parry was psychiatric sessions and counselling to enable the Claimant to return to work and enable her to deal with the substantial disadvantage which had arisen because she was not able to fulfil the PCP. We accept [The Claimant’s] submission that the issue in this case is not the payment of private medical treatment in general, but, rather, payment for a specific form of support to enable the Claimant to return to work and cope with the difficulties she had been experiencing at work.”

The Tribunal cited in support paragraph 5.18 of the then code of practice where it gives the example of a disabled man seeing a work mentor. The EHRC’s Code of Practice on Employment contains similar provisions at paragraph 6.33.

In reality this was a criticism of the employer’s failure to implement the recommendations of the report it commissioned to see how it could help its employee recover from problems caused by its provisions, criteria or practices. It merely drew attention to a long-standing provision of the relevant code of practice that is found in the current one also.

Employers should heed the message that, in appropriate cases, it may well be necessary to consider the use of third parties, such as psychologists or work mentors and, perhaps, to follow the recommendations of the report one commissioned. The focus and purpose must always be on getting the employee back into work: it is not authority for the proposition that there is a general duty to provide general medical treatment. 

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