The Employment Appeal Tribunal ("EAT") has held that an employer breached its duty to make reasonable adjustments for a disabled employee in refusing to pay for private psychiatric counseling and cognitive behavioral therapy, which had been recommended by the employer's chosen consultant psychiatrist, for an employee suffering from work-related stress and depression. The EAT emphasized however that there is no general requirement to fund an employee's private medical treatment.
Croft Vets Ltd & Others v Butcher
Mrs. Butcher worked as a finance and reception manager at Croft veterinary practice. During her employment, her duties grew as the practice expanded, despite her employer recognizing that her role was "so multi-faceted that it is not sustainable". Ultimately, her employer became concerned that she was not performing all aspects of her job satisfactorily. This led to a meeting in which Mrs. Butcher was given the choice of either: (1) taking steps to improve her performance and continue with her job, or (2) take a job with a narrower job description with commensurate cut in salary. Ms. Butcher went off sick and did not return to work.
Mrs. Butcher's GP recorded that she had had work stress for two years and had classical depression. Croft then referred her to a private consultant psychiatrist, Mr. Parry. He suggested that it was predominantly work related stress that had triggered a severe depressive episode despite other stresses (her mother's illness and a house move) having been present. He recommended that Croft consider paying for private cognitive behavioral therapy ("CBT") and further psychiatric sessions for her. He stated however, that there was no guarantee that her health would sufficiently improve to enable her to return to work (ultimately stating that the chances were no more than 50/50).
Croft wrote to Mr. Parry asking some further questions about his report, however he did not respond until January 2011 by which time Mrs. Butcher had resigned. In her resignation letter, she stated that she had not heard from Croft since she had met with Mr. Parry and that her intolerable workload had been the cause of her stress and depression.
Mrs. Butcher brought a disability discrimination claim and the Tribunal found that paying for the treatment recommended by Dr. Parry would have been a reasonable adjustment. Croft appealed.
The EAT upheld the Tribunal's decision. It rejected an argument that requiring an employer to fund private medical treatment could never be a reasonable adjustment because adjustments must be related to the way a job is structured or organized. The EAT considered that the recommendations made were sufficiently "job-related" in this case to fall within the scope of the duty to make reasonable adjustments; the adjustment here was not the payment of private medical treatment in general, but, rather payment for a specific form of support to enable Mrs. Butcher to return to work and cope with the difficulties she had been experiencing at work. There were reasonable prospects that if Dr. Parry's advice was followed and the reasonable adjustments adopted, they would have been successful.
The EAT also rejected a specific argument that the Tribunal had not considered Croft's argument that the treatment was freely available on the NHS but the employee had not tried to undertake it. This evidence had been disputed before the Tribunal and the Tribunal's decision could not be said to be perverse.
It is clear that the EAT is not providing a general obligation to pay for private medical treatment. However, the decision does raise some questions, which is likely to lead to further litigation in this area. It seems to have been important here that the stress was work-related and the treatment directed to assisting Mrs. Butcher to return to work. However, it is not clear whether it is only in these circumstances that a duty will arise. It is also unclear whether it would have made a difference if the medical treatment was available on the NHS given that there was disputed evidence on the issue.