Accommodating an employee’s disability: What constitutes a reasonable adjustment?

7 August, 2014
by: Cripps

Two 2013 Employment Appeal Tribunal (EAT) decisions have thrown into the spotlight the scope of reasonable adjustments which would be required to be implemented for a disabled employee.

 

Paying for private medical treatment

 

In the case of Croft Vets Limited v Butcher the claimant, Mrs Butcher, was signed off work with work-related depression. Mrs Butcher was referred by her employer to a private consultant psychiatrist who recommended that she should receive cognitive behavioural therapy and six psychiatric sessions. The consultant psychiatrist recommended that the employer should pay privately for these sessions even though there was no guarantee that Mrs Butcher’s health would improve from the sessions.

 

The employer chose not to fund the sessions and after waiting for treatment on the NHS with no avail, Mrs Butcher resigned. Consequently Mrs Butcher bought a claim in the Employment Tribunal (ET) for disability discrimination and constructive unfair dismissal. The ET found the employer’s approach amounted to a failure to make reasonable adjustments in that they should have contributed financially towards the private sessions.

 

The EAT upheld the ET’s decision, finding that such adjustments were job-related to enable Mrs Butcher to ‘return to work and cope with the difficulties she has been experiencing at work’. This is of course alarming to employers as they may now be required to fund disabled employees’ private medical treatment. The EAT emphasised that this was not a case about employers generally being obliged to pay for health care; it was a breach of duty on the specific facts of the case. Notably, it was clear from the consultant psychiatrist’s medical assessment that Mrs Butcher’s health problems were to a large extent caused by her work.

 

Allocated parking space

 

In the case of The Environment Agency v Donnelly the claimant, Miss Donnelly, suffered with osteoarthritis and spondylitis, which affected her knees, back and hip.

 

Miss Donnelly under her contract was able to work on a flexitime basis in that she could arrive at work any time before 10am. The office car park tended to be full by 9.30am but did generally have spaces until 9am. Once the office car park was full, employees were required to park in the overflow car park some 10 minutes’ walk away. Miss Donnelly requested that she be allocated a parking space in the office car park as a reasonable adjustment for her disability. Her employer argued that it was open to Miss Donnelly to come into work earlier to ensure that she could park in the office car park. Alternatively, her employer offered her an arrangement whereby she could get lifts to and from the overflow car park or use the disabled space in the office car park provided she moved her car if a badge holder needed it.

 

The ET concluded that Miss Donnelly’s employer had been guilty of disability discrimination in failing to allocate her a parking space in the car park where she worked. Miss Donnelly’s employer appealed the ET’s decision on a number of points.

 

In relation to the employer’s obligation to make reasonable adjustments, the EAT rejected the appeal. The employer’s argument that Miss Donnelly could have come into work earlier, thus making it easier to find a car parking space and therefore negating the need for an allocated space was rejected. The EAT stated that it was not for Miss Donnelly but for her employer to make reasonable adjustments.

 

Both cases have highlighted the importance for an employer to carefully consider whether an adjustment is reasonable. A duty to provide a reasonable adjustment can arise where a disabled person is placed at a substantial disadvantage by:

 

  • an employer’s provision, criterion or practice (PCP);
  • a physical feature of the employer’s premises; and/or
  • an employer’s failure to provide an auxiliary aid.