This is not quite as bad as it first sounds. Where a provision, criterion or practice (PCP) applied by an employer places a disabled employee at a substantial disadvantage by reason of his disability, then the Equality Act 2010 says that the employer has to make reasonable adjustments to prevent the PCP having that effect. Traditionally, that has meant employers making adjustments to the job and not taking steps to cure or mitigate the employee’s disability itself. There has been no obligation on the employer to provide or fund medical treatment for the employee even if that would permit him to work or return to work more easily. That previously clear dividing line in the obligation to make reasonable adjustments has been blurred to some extent by last week’s decision in Croft Vets Limited –v- Butcher.
Butcher was employed as Finance and Reception Manager at Croft but was overworked to the point where it was ultimately reported to the employer that she “was sitting in her office staring out of the window in tears”. She went off sick with depression and never returned. Initially, Croft paid for a private Consultant Psychiatrist to examine her and prepare a report. He suggested that “consideration be given” by Croft to its funding six psychiatric and counselling sessions at a total cost of about £750. However, he fully accepted that even with this treatment, Butcher could remain unfit for many months and may even never recover sufficiently to return to work. Croft did not agree to provide these counselling sessions nor consulted Butcher about them, but instead posed a number of additional questions to the Consultant about her medical condition. Both she and the Employment Appeal Tribunal saw those issues as addressed more to Croft’s liability for the illness than to the steps which it could or should be taking to accommodate it.
Butcher resigned, claiming that Croft’s failure to provide the recommended psychiatric and counselling sessions amounted to a failure to make reasonable adjustments for her disability.
Croft disagreed. It said that the treatment could have been obtained by Butcher via the National Health Service, which would have been free, and that she herself had taken no steps to do so. In those circumstances, said Croft, it was not reasonable for it to have to pay, especially in view of what were admitted to be the treatment’s limited prospects of success. However, the EAT dismissed this argument for want of evidence, querying not only whether the NHS could indeed provide such treatment, but also the timescale in which it might be available.
Second, Croft said that requiring it to pay for medical treatment for Butcher would cross the line from reasonable adjustment into medical treatment. However, the EAT noted that among the examples of reasonable adjustments given in the legislation is “giving or arranging for training or mentoring”. It considered that the sessions recommended by the Consultant were not strictly medical treatment for Butcher, but were instead to provide her with a specific form of support giving her a better chance of returning and coping better with the difficulties she had been experiencing in the office. Therefore the psychiatric sessions recommended fell within the mentoring example in the legislation. Butcher’s illness was mental, but the psychiatric support recommended was no different in concept from the suggestion that the employer spend the same money on, say, an ergonomic chair for someone with an otherwise incapacitating back problem – this was not about funding medical treatment, but about the provision of a specific form of support in the workplace.
The lesson for employers dealing with a medical recommendation of this sort is therefore to consider carefully whether what is being recommended is medical treatment or a form of support. Is it aimed at lessening the impairment which is an essential part of any statutory disability, or at lessening the impact of that impairment on the individual in the workplace? If it is the latter, then even though it may look like medical treatment, it could well constitute a reasonable adjustment.