Few would contend that the management of long term sickness absence is easy, and as the employer discovered in the recent case of Croft Vets Ltd & Ors v Butcher the cost of getting it wrong can be considerable.

The Croft case concerned a successful vet’s practice with several branches and a specialist animal hospital. Mrs Butcher had been employed by Croft for a number of years and had seen her responsibilities increase over that time. Initially, Mrs Butcher coped well. However, Croft’s failure to recruit additional staff, together with its decision to make her responsible for the installation of a new telephone and software system (both of which encountered problems), meant that by April 2010, Mrs Butcher’s health had visibly deteriorated with colleagues reporting that they had found her sitting in her office “staring out of the window in tears”.

The deterioration in Mrs Butcher’s health was formally diagnosed by her G.P. as “depression”, and Mrs Butcher was signed off from work on 4 May 2010 (she never returned).

Initially, Croft did everything correctly in terms of managing Mrs Butcher’s absence. Things took a turn for the worse however following Croft’s decision in June 2010 to refer Mrs Butcher to Dr Parry (a private consultant psychiatrist). Dr Parry saw Mrs Butcher on 3 August 2010 and his subsequent written report to Croft confirmed that Mrs Butcher was suffering from severe depression and anxiety, and that her illness was linked predominantly to the work related stress that she had suffered. Dr Perry’s report also contained the following recommendation:

“I suggest that consideration is given to funding a further six psychiatric sessions at a cost not exceeding £750, in order to optimise Mrs Butcher’s treatment with anti-depressant medication, and in order to provide an overview of her progress.”

So far, so good. However, and for whatever reason, it appears that Croft and Dr Parry then entered into a period of protracted communication with Croft challenging various aspects of the report that he had prepared concerning Mrs Butcher’s medical condition. There was nothing wrong with Croft’s decision to do that but in doing so it made the fatal (and in our experience all too common) mistake of forgetting to communicate with Mrs Butcher. Mrs Butcher felt that she had been forgotten about and was irritated by the fact that Croft had failed to follow up on any of Dr Parry’s recommendations for treatment.

Mrs Butcher resigned from her employment on 23 November 2010 and subsequently issued Employment Tribunal proceedings against Croft. A key part of Mrs Butcher’s claim concerned the fact that in order for her employment with Croft to have continued, there must ultimately have been a requirement that she would one day be able to return to work and perform the “essential functions” of her role.

The Employment Tribunal agreed that that requirement existed and that because it placed Mrs Butcher at a “significant disadvantage” (when compared to a non disabled employee), Croft were under a duty to take reasonable steps to reduce or eliminate that disadvantage. For the avoidance of doubt, it was accepted by Croft that Mrs Butcher’s diagnosis of depression meant that she was disabled for the purposes of equality legislation.

Mrs Butcher’s legal team argued that Croft’s failure to take up Dr Parry’s recommendation that it should fund additional psychiatric sessions meant that it had failed in its duty to make reasonable adjustments, and consequently that she had been discriminated against. In a decision that will likely come as a surprise to many employers and HR professionals, the Employment Tribunal agreed. Croft appealed to the Employment Appeal Tribunal (“EAT”).

Croft advanced three main arguments in its appeal to the EAT against the Tribunal’s finding that its failure to fund private medical treatment for Mrs Butcher had been discriminatory. Those arguments were as follows:

  1. that it was outside the scope of reasonable adjustments to require an employer to fund private medical treatment
  2. that Croft could not be guilty of failing to make a reasonable adjustment in circumstances where Mrs Butcher herself had failed to seek the recommended medical treatment, and
  3. that the recommended provision by Croft of private medical treatment to Mrs Butcher did not constitute a reasonable adjustment because the outcome of that treatment was unlikely to be successful.

The arguments advanced by Croft will no doubt be familiar to many readers and many readers will likely be sympathetic towards them. However, the EAT had little trouble in dismissing them.

In finding for Mrs Butcher and upholding the Tribunal’s original decision, the EAT confirmed that a distinction could clearly be drawn between a recommendation of specific medical treatment or intervention (in this case the provision of six additional psychiatric sessions) aimed at enabling the disabled employee to return to work, and the provision of private medical treatment (where the focus or objective of that treatment relates to the employee’s disability generally).

It is also important for readers to note that the EAT went on to confirm that in order to constitute a reasonable adjustment, a specific medical intervention or course of treatment does not need to be guaranteed of success.

The Croft case serves as a timely reminder to anyone tasked with the responsibility of considering reasonable adjustments that adjustments cannot be discounted on the basis that they may involve significant costs and are not guaranteed of success. Each proposed adjustment needs to be considered in light of the employee’s individual circumstances, and it is increasingly likely, in our view, that where there is a diagnosis of work related stress followed by a recommendation for a specific type of psychiatric or psychological intervention (linked to facilitating the employee’s return to work), then that recommendation will need to be carefully considered and in many cases acted upon.

Disability law and reasonable adjustments – what every employer needs to know:

  • Adjustments that will not work are never reasonable. However, adjustments that ‘may’ work can be. Where there is doubt as to the appropriateness or likely effectiveness of a proposed adjustment, the employer should consider obtaining an expert view.
  • The cost of possible adjustments, together with the employer’s financial resources, is relevant to the question of whether proposed adjustments are reasonable but will rarely be determinative.
  • The effect of a proposed adjustment on the wider organisation or workforce as a whole can be taken into account when considering whether or not an adjustment would be reasonable. Although uncooperative or obstructive behaviour from the wider workforce is unlikely to provide the employer with an effective defence.
  • The duty to consider making reasonable adjustments rests with the employer. Under existing UK law there is no onus on the disabled employee to suggest adjustments.
  • Employers cannot pass the cost of making reasonable adjustments on to disabled employees.

For further information on this article, or for any other employment law query, please contact Nathan Combes.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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