The question of what constitutes a reasonable adjustment often turns up in case law and the latest case of Croft Vets Ltd & Ors v Butcher (2013) is no exception.
The Equality Act 2010 imposes a duty on employers to make reasonable adjustments to help disabled job applicants, employees and former employees. The question of what is reasonable will depend on the employer’s resources as well as the particular circumstances.
The duty to make reasonable adjustments arises where an employer knows (or ought reasonably to have known) that the person was disabled, and that such person is put at a substantial disadvantage by a provision, criteria or practice of the employer, a physical feature of the employer’s premises or the employer’s failure to provide an auxiliary aid.
Mrs Butcher was employed as a reception and finance manager at Croft Vets Ltd. She started her employment in 1996 and at the start there were only four surgery branches. Over the years, the practice expanded and Mrs Butcher was handed more and more responsibilities. This caused her to become stressed. This stress, along with some personal problems, led to Mrs Butcher being signed off from work by her doctor with clinical depression in 2010.
Mrs Butcher’s employers referred her to a private consultant psychiatrist to prepare a report on her condition. The consultant was someone whom the employers had referred other employees to in the past. The report that came back recommended that Mrs Butcher should see a clinical psychologist and attend six psychiatric sessions. The cost of these sessions was said not to exceed £750. However, Mrs Butcher’s employers ignored this suggestion and instead sought to query the report which resulted in significant delays to the matter. In addition, the employers did not follow up or correspond with Mrs Butcher after receiving the report.
As a consequence of the lack of correspondence and the events that led to Mrs Butcher becoming depressed, Mrs Butcher resigned and claimed constructive unfair dismissal and disability discrimination. Her claims were successful at the Employment Tribunal, who found that the employers had not made reasonable adjustments by failing to pay for Mrs Butcher to have private psychiatric services and counselling. The employers appealed to the Employment Appeal Tribunal (EAT). However, the EAT agreed with the findings of the Employment Tribunal and dismissed the employers appeal.
Whilst this decision may appear alarming because the employers were told they should have paid for the additional treatment and counselling, employers should note that an Employment Tribunal will take into account the financial resources of an employer when considering what constitutes a reasonable adjustment (amongst other factors). The EAT said that in this case “the issue 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.” The cost was also not too expensive. Excessive financial costs may mean that an adjustment would place a disproportionate burden on an employer to make, and will be deemed unreasonable. For example, in Cordell v Foreign & Commonwealth Office (2011), an Employment Tribunal held that the costs of providing an English lip speaker support for a profoundly deaf employee (about £250,000 a year) were unreasonable.
Each case on whether an adjustment is reasonable will turn on its own individual facts. Therefore, it is important for an employer facing such dilemmas that all factors are considered and a proportionate and balanced decision is reached.
Do you need advice on reasonable adjustments? We can help, just contact any member of the Pure Employment Law team (01243 836840 or [email protected]).