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29th October 2013

Private counselling found to be a ‘reasonable adjustment’

In the case of Croft Vets Ltd and others v Butcher, the Employment Appeal Tribunal (EAT) considered whether it would have been a reasonable adjustment for an employer to pay for an employee, who was suffering from work-related stress and depression, to have private counselling.

The facts of the case were that Mrs Butcher worked as a finance and reception manager at a veterinary practice. In 2007, her employer decided to open another hospital. In her appraisal letter, the employer acknowledged that “your job is so multi-faceted that it is not sustainable in its present form with the additional responsibilities of the new hospital”. At the same time, Mrs Butcher had to implement new phone and IT systems. Further, her mother’s serious illness was affecting her ability to work.

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 members of staff approached a manager expressing concerns that Mrs Butcher was “sitting in her office staring out of the window in tears”. On 29 April, Mrs Butcher met with the employer, which offered her two choices: to continue with her current job and take steps to improve her performance, or to narrow her job description and receive a lower salary. On 4 May, Mrs Butcher went off sick with depression and did not return to work.

A GP recorded that Mrs Butcher had suffered from work-related stress for two years, and had “classical depression”. The employer referred Mrs Butcher to a private consultant psychiatrist, Dr Parry, whose report suggested that it was predominantly work-related stress that had triggered the severe depressive episode. He recommended that the employer pay for her to have sessions in cognitive behavioural therapy (CBT) and further psychiatric sessions. He stated, however, that there was no guarantee that Mrs Butcher’s health would improve to the extent that she would be able to return to work. In October 2010, the employer responded to Dr Parry’s correspondence, asking further questions. He did not reply until January 2011.

Mrs Butcher resigned on 23 November 2010. In her resignation letter, she pointed out that she had received no communication from her employer since she had met with Dr Parry. Further, she claimed that her intolerable workload had caused her stress and depression. She brought and succeeded with disability discrimination (reasonable adjustments) and constructive dismissal claims before an employment tribunal. In the tribunal’s view, the employer should have made the adjustments suggested by Dr Parry and paid for Mrs Butcher to have private psychiatric counselling and CBT.

The employer subsequently appealed to the EAT.

The EAT upheld the tribunal’s decision. It held that the tribunal had been entitled to find that the employer applied a ‘provision, criterion or practice’ that employees should be able to attend work and perform their roles.  Accordingly, this placed Mrs Butcher at a substantial disadvantage owing to her mental impairment.  In reference to the employer’s argument that reasonable adjustments must be “job-related”, the EAT determined that Dr Parry’s suggested adjustments were job-related in the required sense. The available medical evidence confirmed that Mrs Butcher was suffering from predominantly work-related stress – therefore, the EAT believed that the adjustments would have “involved payment for a specific form of support” to help her to return to work and to cope with her work-related difficulties.

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