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Paying for medical treatment held to be a Reasonable Adjustment
Croft Vets -v- Butcher EAT 2013
Handling long term sickness or disability related issues in the workplace is always a challenging task for employers, particularly when trying to assess what, if any, reasonable adjustments should be carried out in order to comply with your duty under the Equality Act 2010.
A recent case has suggested that it may now be a reasonable adjustment to fund the cost of private medical treatment.
Butcher was off sick with work related stress and severe depression. The Employer referred Butcher to see a consultant psychiatrist with a view to obtaining a report on the Claimant’s medical condition. The psychiatrist recommended that the employee see a clinical psychologist and attend 6 psychiatric sessions. The employer failed to act upon the recommendations. In response to the lack of action by the employer, Butcher resigned from her employment and claimed constructive unfair dismissal and disability discrimination arising from a failure to make reasonable adjustments.
The Employment Tribunal identified the relevant “practice, criterion or provision” (“PCP”) which was applied to the employee as being the “employer's requirement that the employee return to work performing the essential features of her job”.
As the employee was susceptible to dismissal on grounds of capability which arose from the employee's difficulty of meeting the PCP due to an underlying disability, the employee was placed at a substantial disadvantage by the PCP. This crystallised the employers duty to make reasonable adjustments to remove the PCP which was placing the employee at a substantial disadvantage.
It was held by the Employment Tribunal and the EAT that the recommendation that the employee be referred to a clinical psychologist for 6 sessions of treatment was specific to overcoming the job related issues which were causing her ill health and facilitating her return to work i.e. addressing the work related stress. They were therefore said to be “job-related” and as such held to be a reasonable adjustment which the employer had failed to fulfil. Indeed the EAT compared the treatment as being akin, as identified under the Code of Practice, to arranging or providing training or mentoring.
It was also held by the employment tribunal and the EAT that the employee had been constructively dismissed, the failure to make a referral for medical treatment and to consult with the employee during her absence being a repudiatory breach of implied trust and confidence.
Lawyers for employees will rely on this case when advising employees faced with possible dismissal on grounds of long term ill health. Any failure to consult or actively implement recommended support to facilitate the employee return to work may give rise to claims for constructive dismissal or disability discrimination.
Note that this decision does not impose an obligation to fund private medical treatment in all cases. The treatment has to be specific to the job requirements. However when the obligation actually crystallises will not always be so obvious.
This case is a stark reminder of the difficulties in correctly handling a capability issue arising from ill health/disability and employers are encouraged to take legal advice and guidance at an early stage.