The recent Employment Appeal Tribunal (“EAT”) case of Croft Vets Ltd v Butcher is causing concern for employers who are managing employees who are absent from work due to long term illness. It addresses the issue as to what might amount to the making of “reasonable adjustments” to facilitate the return of the employee to the working environment.
Mrs Butcher was employed by Croft Vets as a reception and finance manager. She suffered from work-related stress and severe depression. She resigned from her employment when Croft Vets did not act on the recommendations made by the clinical psychiatrist to whom they had referred her. The employment tribunal upheld her claims that the employers failed to make reasonable adjustments to be well-founded, that she was unfairly constructively dismissed and that her dismissal was an act of discrimination arising from disability. The EAT dismissed the employer’s appeal on liability (save for the finding that the dismissal was an act of discrimination arising from disability).
The potential for confusion in this case arises due to the nature of the “reasonable adjustments” in question. The recommendation from the clinical psychiatrist was that “consideration be given by the employer to its funding six psychiatric and counselling sessions at a total cost £750”. However, the consultant also fully accepted that even if the employee underwent these sessions, it was possible that she might remain unfit for many months and may even never recover sufficiently to return to work.
The employer decided that it would not accept the recommendation that it should pay for the counselling sessions nor did it consult the employee about them. In the end the employee resigned claiming that the employer’s failure to provide the recommended psychiatric and counselling sessions amounted to a failure to make reasonable adjustments for her disability.
The employer argued that the psychiatric and counselling sessions amounted to medical treatment and that, as an employer, it was not obliged to finance any medical treatment that the employee might require in these circumstances. The employer also argued that it would not be reasonable for it to have to pay for them, especially in view of what were admitted to be the treatment’s limited prospects of success, but also bearing in mind that it may have been possible to obtain similar treatment through the NHS free of charge. However, since the employer did not produce any evidence of the availability of alternative therapies the EAT could not support that ground of appeal.
In finding that the sessions recommended by the consultant psychiatrist amounted to reasonable adjustments the EAT drew an analogy with other examples of reasonable adjustments given in the legislation which include “giving or arranging for training or mentoring”. It considered that the sessions recommended by the consultant were not strictly “medical treatment” but were recommended so as to provide the employee with a specific form of support which would give her a better chance of returning to work and coping with the difficulties that she had been experiencing.
Conclusion
In the light of this case employers now need to think more carefully about the nature of the recommendations being made about employees on long term illness, even if these have been made by medical advisers, in order to determine whether or not they amount to medical treatment or, as in this case, might be construed as being a reasonable adjustment that was required in order to assist the employee in returning to work. If construed as reasonable adjustments, the employer may face a Tribunal claim if it fails to provide these.
See also
Some other substantial reason
Unfair Dismissal - Compensatory award changes