Case update (1): Disability discrimination – reasonable adjustments

disability discrimination - person in wheelchairSummary:  Is it a reasonable adjustment to pay for an employee’s private counselling or to provide a designated car parking space?  Yes, in certain circumstances, says the EAT in (1) Croft Vets Ltd and Others v Butcher and (2) Environment Agency v Donnelly respectively.  The cases are available here and here.

Facts:

1.  Mrs Butcher was a reception and finance manager at a veterinary practice. Her workload had increased substantially.  This was noted by her employer in her appraisal and it was recognised that the current workload would be unsustainable going forward (particularly since the employer was opening a second hospital).

One of Mrs Butcher’s duties was to report bad debts owed to the practice. The employer believed that she had failed accurately to report its bad debt position, and in March 2010 instructed her to concentrate solely on debt collection duties.  In April 2010, two employees reported that Mrs Butcher was “sitting in her office staring out of the window in tears”.  In a meeting, Mrs Butcher’s employer gave her the option of either continuing with her current job, with support to improve her performance, or to become purely a ‘financial controller’, and receive a lower salary.  Shortly afterwards, Mrs Butcher went off sick with depression. She did not return to work.

Mrs Butcher’s GP diagnosed her with depression, which was exacerbated by work-related stress.  Her employer asked her to visit a private psychiatrist, to see if there were any steps they could take to assist Mrs Butcher in returning to work.  The psychiatrist’s report stated that Mrs Butcher was indeed suffering from a ‘severe depressive episode’, caused predominantly by work-related stress, and that she would be off work for at least three to four months.  He recommended that her employer pay for her to have cognitive behavioural therapy (CBT) and further psychiatric sessions in an effort to optimise her treatment.  However, there was no guarantee that Mrs Butcher would ever be able to return to work.

The employer asked the psychiatrist a number of further questions but Mrs Butcher resigned before the employer had received a full response.  Her resignation letter cited the employer’s lack of contact since her referral to the specialist, and its apparent failure to accept the expert findings.  Mrs Butcher alleged that her employer had discriminated against her due to her disability.

The Tribunal upheld Mrs Butcher’s claims of constructive dismissal and disability discrimination for the employer’s failure to make reasonable adjustments.  It held that the employer should have paid for the recommended counselling treatment.

The employer appealed to the EAT.  The EAT upheld the Tribunal’s decision.  It agreed that the proposed adjustments (the counselling sessions) were sufficiently job-related, since Mrs Butcher had been suffering from work-related stress and the aim of the treatment was to help her to return to work.  The EAT also considered that the employer’s lack of contact with Mrs Butcher following the psychiatrist’s report had been a contributing factor in its failure to make reasonable adjustments.  If they had at least broached the subject with Mrs Butcher of any proposed adjustments, this may have gone some way to discharging their duty.

Implications:  The decision that an employer was obliged to fund a disabled employee’s private medical treatment might seem surprising and alarming. However, there’s no need to panic as the EAT did emphasise that this decision is not meant to create a general rule that employers must provide payment for private treatment in all circumstances.  Simply, the Tribunal had been entitled to find a breach of the duty on the facts of the case.

It was clear in this case that the majority of the stress that triggered the employee’s depressive episode was caused by work-related matters.  It is therefore understandable that when the cause can be attributed to the employer’s actions (or inactions), it may be reasonable for them to take steps over and above what might otherwise be considered reasonable to help a disabled employee return to work.

There is likely to be further case law in this area.  Particularly in relation to whether, and to what extent, an employer must be to blame for an employee’s mental health problems before it is obliged to pay for treatment.  Watch this space for any further cases on this point…

2.  The employee, Ms Donnelly, suffered from osteoarthritis and spondylitis.  This affected her knees, back and hip. She was entitled under her contract to work flexi-time hours, which meant she could arrive at work any time before 10.00am. The office’s main car park generally had spaces at 9.00am but it was usually full by 9.30am.  Ms Donnelly generally arrived at work at 9.30am; by which time the car park was full.  There was an overflow car park, which was an extra ten minutes’ walk away.

Ms Donnelly claimed that it would have been a reasonable adjustment for her to have been allocated a car parking space in the main car park so that she would not have to walk the extra distance.  The employer argued that it was open to Ms Donnelly to come to work at 9.00am and leave work earlier.  Alternatively, she was offered an arrangement by which she could get lifts to and from the more distant car park; or could use a disabled space provided she moved her car if a badge holder needed it.  A report from an ergonomic expert noted that walking from a parking location other than the main car park was problematic.  The report specifically recommended a suitable parking space onsite.

Ms Donnelly brought a Tribunal claim.  One of her claims was disability discrimination for failure to make reasonable adjustments.

The Tribunal found in favour of Ms Donnelly.  The employer had applied a “provision, criterion or practice” (PCP) that she had to walk from a distant car park and she had suffered a significant disadvantage because of it. The employer had failed to make reasonable adjustments.

The EAT upheld the Tribunal’s decision.  Ms Donnelly had the right under her contract to come into work at any time within the flexi-time arrangements.  It was not for her, but for the employers, to make reasonable adjustments.

Implications:  The case illustrates the importance of (i) employers considering their ability to make adjustments, rather than placing the onus on the employee to make changes, and (ii) following recommendations in specialist reports wherever possible.