Private medical treatment is a 'reasonable adjustment'

You may be forgiven for thinking that the provision of private healthcare would be beyond the scope of an employer's duty to make 'reasonable adjustments' for disabled employees.  But, apparently not - according to the Employment Appeal Tribunal ('EAT') in the recent case of Croft Vets v Butcher. Jodie Sinclair explains more. 

The background

The Equality Act 2010 places employers under a duty to make reasonable adjustments where it applies a provision, criterion or practice ('PCP') that puts a disabled person at a substantial disadvantage when compared with persons who are not disabled.  Typically this has involved making adjustments to an employee's job, such as a change in hours or the physical modification of an employee's workstation, rather than taking steps to alleviate the disability itself.  However, the EAT has handed down a decision which suggests that an employer must go even further.

The facts

In Croft Vets v Butcher, the Claimant, Mrs Butcher worked as a Finance and Reception Manager at a veterinary practice.  She was significantly overworked to the extent it was reported to her manager that she had been "sitting in her office staring out of the window in tears".  She was signed off sick with stress and depression and did not come back to work. 

The practice initially referred Mrs Butcher to a private consultant psychiatrist whose report suggested that the practice should pay for her to have six psychiatric sessions at an overall cost of approximately £750.  The practice's failure to follow this recommendation led to Mrs Butcher resigning, claiming that the failure amounted to a failure to make reasonable adjustments. 

The decision

Upholding the decision of the Employment Tribunal, the EAT decided that the practice had failed to make a reasonable adjustment by refusing to pay for Mrs Butcher's psychiatric sessions.  The EAT made the following observations.

• The EAT said their finding was not that employers should fund private medical treatment in general; but that in this particular case, the adjustment would have "involved payment for a specific form of support" to help Mrs Butcher return to work and to cope with her work-related difficulties. 
• As the sessions were about helping Mrs Butcher to cope better with difficulties in the office, similarities were drawn with the provision of training or mentorship.  The EAT felt that the payment for the sessions was no different in principle to paying for an ergonomic chair, as both provided a specific form of support in the workplace.   
• The EAT dismissed the employer's argument that Mrs Butcher could have obtained the treatment free of charge through the NHS but had failed to take any steps to do so.  The EAT commented that there was insufficient evidence before them about the availability or waiting times for such treatment on the NHS for this to be considered a valid argument.

What does this mean for me?

The prospect of employers having to fund private medical treatment may, on the face of it, seem rather alarming.  However, employers may be reassured that the EAT's decision adopted a narrow approach to this requirement, which was significantly influenced by the fact that Mrs Butcher's health problems were to a large extent caused by her work.  Another distinguishing feature of this case was the fact that the purpose of the treatment was twofold: it was recommended not only because it would enable Mrs Butcher to return to work more quickly, but also because it was would help her to cope with the difficulties she experienced at work.    

It is also important to note that what is 'reasonable', in terms of 'reasonable' adjustments will depend on factors such as the size and financial resources of the employer.  In this case, the cost of the adjustments was deemed relatively small in comparison with the practice's resources and the potential benefits to Mrs Butcher. 

Taking the above into account, the principles applied by the EAT towards the reasonableness of paying for private treatment are similar to the principles which are applied to other types of paid-for adjustments, and in relation to which I (and the rest of the team) advise on a regular basis – for example, we have recently been advising clients on the reasonableness of paying for medical assessments in relation to learning difficulties, so that a return to work may be facilitated.  If you have any queries in relation to this, please do get in touch with me or another member of the team.