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Failure to pay for private treatment discriminated against disabled employee

In Croft Vets Ltd v Butcher, the EAT agreed with an employment tribunal that an employer failed to comply with the duty to make a reasonable adjustment for a disabled employee who, had been absent from work for a number of months suffering from work-related depression, when it did not act on a doctor’s recommendation to pay for private psychiatric services.

The ET had correctly identified that the provision, criteria or practice (PCP) of returning to work to perform the essential functions of her job placed B at a substantial disadvantage, as confirmed by medical opinion. By not paying for B to have private psychiatric services, as recommended by a doctor, the employer had failed in its duty to prevent the PCP from disadvantaging her. The payments were not for private medical treatment in general, but, for a specific form of support to enable B to return to work and cope with the difficulties she had been experiencing. The treatment could lead to a significant improvement in B’s work-related depression and the adjustment was reasonable as it would lessen the substantial disadvantage caused by the PCP. Over three months had passed without the employer acting on the recommendation and it had failed to consult with B, or offer her any explanation.

This case highlights the need to carefully examine the extent of any reasonable adjustments recommended, which should involve reference to Chapter 6 of the EHRC Employment Code – ‘Duty to make reasonable adjustments’. The Code highlights that a reasonable step might be “giving, or arranging for, training or mentoring” and also points out that evaluation must be in consultation with the disabled person, with necessary adjustments implemented in a timely fashion, neither of which happened in this case.

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