One Must, One Must, One Must Adjust

An employer’s duty to provide reasonable adjustments for disabled applicants or employees has long been embedded in UK legislation since the Disability Discrimination Act 1995 (DDA 1995) and re-incorporated into the Equality Act 2010 (EA 2010).

The duty essentially arises where a disabled person is placed at a substantial disadvantage by an employer’s provision, criterion or practice, a physical feature of the employer’s premises or an employer’s failure to provide an auxillary aid. However, the very word ‘reasonable’ leaves much room for interpretation and it is difficult for employers to know what is considered reasonable in any given circumstance and what it actually means to make a reasonable adjustment.

There is some guidance from the Equality and Human Rights Commission Code of some typical reasonable adjustments which may help alleviate a disabled person’s disadvantage. That includes things like making adjustments to premises, altering hours of working or training, acquiring or modifying equipment and allowing absence for rehabilitation, assessment or treatment.

However, the Employment Appeal Tribunal in the recent case of Croft Vets v Butcher, seems to have gone a step further and held that it is within the scope of reasonable adjustments to require an employer to fund private medical treatment. In this case, the Claimant suffered from work-related stress and severe depression. Whilst the Claimant was off sick, the employer referred the Claimant to a consultant psychiatrist who recommended that the Claimant see a clinical psychologist and attend six psychiatric sessions. The employer failed to act on these recommendations and the Employment Tribunal found that they had therefore failed to provide reasonable adjustments. The employers appealed and in dismissing their grounds of appeal, the Employment Appeal Tribunal upheld the finding that failing to pay for the private psychiatric services and counselling was a failure to provide reasonable adjustments as the payments were not for private medical treatment in general, but rather for a specific form of support to enable the Claimant to return to work and cope with the difficulties she had been experiencing at work. The fact that the treatment would have lead to an improvement in the Claimant’s depression (thereby giving a real prospect of removing a disadvantage) made the adjustment reasonable.

This case places a high (and some would say onerous) burden on employers and we shall have to see to what extent this is supported by other Tribunal decisions.

If anyone needs advice they should contact Linky Trott at linky.trott@edwincoe.com

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