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disability discrimination reasonable adjustments

paying for private medical treatment – thin end of the wedge?

croft-vets2

Mrs Butcher started work for the veterinary practice Croft Vets in 1996. Over time the practice expanded and she was promoted to finance and reception manager. In the period from 2007 to 2010 the practice opened a new hospital and acquired new phone and IT systems, both of which suffered the inevitable teething troubles, all of which Mrs Butcher had to manage on top of her existing responsibilities. Unsurprisingly, she was observed sitting in her office staring out of the window in tears shortly after returning to the office, following a week off, during which she had moved house. A few days later in May 2010 she went off sick with depression, never to return.

Her employer’s initial response was to offer the choice between support to carry on with her existing workload or taking a lesser job at lower pay. After a few weeks, they asked her to see a consultant psychiatrist “to allow us to consider whether there are any steps we can take now to facilitate your return to work”.

The psychiatrist reported back on 19 August that work related stress had triggered a severe depressive episode with marked anxiety. He recommended that as well as antidepressant medication she should have six further psychiatric sessions including CBT to help her recover. He gave an indication that the cost would not exceed £750. There ensued some correspondence between employer and psychiatrist which confirmed the diagnosis, and discussed how long she might remain unwell. No steps were taken to implement the psychiatric recommendations. In November 2010 Mrs Butcher resigned. She alleged that that her employers had caused her breakdown, questioned the psychiatrist’s diagnosis, and ignored his recommendations, all of which meant that she had suffered disability discrimination. The final view of the psychiatrist, (given after her resignation) was that given specialist help, while it was difficult to predict how long she would be unwell, the average period for recovery would be a year, but that given the severity of the issues at work, there was only a 50/50 chance of her being able to return at all.

An Employment Tribunal held that the employer had imposed a “provision, criterion or practice” (PCP) that she be able to get back to work and perform her essential duties, and that they had failed to make reasonable adjustments to enable to do so by failing to act on the medical advice they had received. Croft Vets appealed, largely unsuccessfully, to the Employment Appeal Tribunal (Croft Vets Ltd & Others v Butcher), who agreed that requiring her to be able to return to work was a PCP, and accepted that it was possible for payment for private psychiatric treatment to be a reasonable adjustment. An appeal against a finding of constructive dismissal did succeed because the allegation had never, in fact, been raised before the Employment Tribunal.

This case does not establish a general principle that employers must pay for private treatment, but in this case the payment was 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”.

Martin Malone

By Martin Malone

I'm a solicitor and the chief operating officer at Canter Levin & Berg. I was formerly head of the employment department.
I maintain this website so if you have any suggestions, criticisms or recommendations please email me at martinmalone@canter-law.co.uk.
Outside work my interests include national hunt horse racing, France and French wine and current affairs. I also design and maintain websites.