Croft Vets Ltd & Ors v Butcher

An employer’s reasonable-adjustment duty may require payment for specific private psychiatric support or counselling where it is directed to overcoming a work-related disadvantage and enabling a disabled employee to return to work. The duty does not thereby impose a general obligation to fund medical treatment.

Medical reports identifying a severe work-related depressive condition can give an employer actual knowledge both of disability and of the likely disadvantage caused by a requirement to perform the essential functions of the role. A failure, without explanation or consultation, to act on such recommendations may also breach the implied term of mutual trust and confidence.

A tribunal must not determine an unagreed issue without giving the affected party an opportunity to make submissions.

The claimant was a reception and finance manager who developed severe depression and anxiety, predominantly triggered by work-related stress. Following reports from a consultant psychiatrist, the employers did not fund the recommended psychiatric sessions and counselling, or address the claimant’s work concerns. She resigned with immediate effect.

The Employment Tribunal at North Shields upheld claims for failures to make reasonable adjustments and constructive unfair dismissal. It also found that the dismissal was discrimination arising from disability. In a subsequent remedies judgment it awarded compensation, including notice pay.

The employers appealed the liability findings and the remedies award. The principal issues were the relevant provision, criterion or practice, the scope of reasonable adjustments, constructive dismissal, procedural fairness, and the proper measure of notice-pay damages after constructive dismissal.

1. The liability appeal was allowed only in respect of the finding of discrimination arising from disability; all other liability grounds and all remedies grounds were dismissed. The Tribunal had decided that issue although it was not among the agreed issues and had not been addressed by the parties. That denied the employers the opportunity to make submissions. The finding was set aside.

2. The Tribunal was entitled to identify a PCP requiring the claimant to be able to return to work and perform the essential functions of her role. Her disability placed her at a substantial disadvantage because inability to perform those functions exposed her to dismissal. The proposed reduced role and pay did not remove that disadvantage, since there was cogent evidence that she could not have performed even the limited duties.

3. On receipt of the psychiatrist’s reports, the employers knew that the claimant had a disability and was likely to suffer that disadvantage. They should therefore have made the identified adjustments by early September 2010, or at the latest after the further report in October.

4. Payment for private psychiatric sessions and counselling was capable of being a reasonable adjustment under Disability Discrimination Act 1995. The support was specifically recommended to help the claimant return to work and cope with the work-related difficulties causing the disadvantage. It was not a general requirement to pay for private medical treatment. The Tribunal was entitled on the evidence to find reasonable prospects that the recommendations would assist, and that the employers’ failure to engage with the claimant after the reports was also unreasonable.

5. There was no statutory duty to consult. However, the employers’ unexplained failure to follow the recommendations or consult the claimant after the reports breached the implied term of mutual trust and confidence. It was an effective cause of her resignation and justified the constructive-dismissal finding.

6. For wrongful-dismissal damages, an immediate resignation following the employer’s repudiatory breach was to be treated as loss arising from the employer’s failure to give statutory notice. The relevant provisions were therefore those governing employer notice, not the one-week notice ordinarily required from an employee. The award based on twelve weeks’ notice pay stood.

• Employment Appeal Tribunal: Allowed the employers’ appeal only to set aside the Tribunal’s unagreed finding that dismissal was discrimination arising from disability. Dismissed the remaining liability grounds and the remedies appeal.
• Employment Tribunal, North Shields: In judgments sent on 17 May 2012 and 18 September 2012, upheld failures to make reasonable adjustments and constructive unfair dismissal, and awarded compensation.