The recent Employment Appeal Tribunal case of Croft Vets v Butcher has given rise to the possibility that employers may be required to pay for psychiatric treatment or counselling for their depressed employees.

The appeal in Croft centred around an employee who had taken time off work because she was suffering from work-related stress and depression. In response to her sickness absence the claimant’s employer referred her to a private Consultant Psychiatrist. The psychiatrist recommended a number of further sessions to facilitate her return to work. When her employer refused to pay for those sessions the claimant successfully brought a claim of unfair constructive dismissal.

Basis of the Claim

The claimant based her claim on her employer’s failure to meet its duty to make reasonable adjustments for her disability (her depression). Disabled employees must be prevented by their employers from suffering a substantial disadvantage in the workplace as a result of their disability. As such an employer must make reasonable adjustments to prevent any disadvantage from occurring.

In the case of Croft the claimant was successful in arguing that, by refusing to fund her treatment, her employers had failed to make reasonable adjustments for her and as such failed to prevent her from suffering a substantial disadvantage as a result of her disability.

When is Depression a Disability?

A disability, according to the Equality Act is

a physical or mental impairment’ […] which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

Mild depression would not therefore be considered a disability, but anything which might prevent a person from going to work and which lasts, or is likely to last, longer than 12 months would be considered a disability.

An Employer’s Duty to make Reasonable Adjustments

If an employer knows or ought to have known that an employee has a disability then the duty to make reasonable adjustments to prevent a disadvantage arises.

Section 20 of the Equality Act creates a three-fold duty on employers to make reasonable adjustments

(1) It requires that where a provision criterion or practice (PCP) puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled, an employer must take such steps as are reasonable in order to avoid the disadvantage

(2) It requires that where a physical feature puts a person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled

(3) a requirement, where a disabled person would, but for the provision of an auxiliary aids be put at a substantial disadvantage.

Does this mean employers must pay for private medical treatment?

In short, no. The duty would only arise where it could be proved that paying for treatment might amount to a reasonable adjustment. In the case of Croft it was not the private medical treatment which was an issue per se but the failure to provide a specific form of support, the psychiatric treatment, that would have allowed the claimant to return to work.

Who should meet the cost of psychiatric treatment?

The cost of complying with the duty to make reasonable adjustments should never fall to the employee. Section 20(7) of the Equality Act provides that a person subject to the duty to make reasonable adjustments may not, subject to express provision to the contrary, require a disabled person to pay the costs of meeting that duty to any extent.

Do small employers have to make reasonable adjustments?

Formerly section 7 of the Disability Discrimination Act (DDA) exempted employers with fewer than 20 employees from making reasonable adjustments for their disabled employees. This is not so with the Equality Act which replaced the DDA and which provides no such exemption for smaller employees. Notwithstanding the requirement for all employers to make reasonable adjustment, the size of an employer’s business can be a relevant factor for a tribunal to consider in respect of what constitutes a reasonable adjustment.

If you have suffered from depression and feel that your employer has failed to make reasonable adjustments for you to allow you to continue working then you may wish to call our legal helpline on [phonenumber]. Your call will be answered by a legally qualified advisor and anything you tell us will be treated in the strictest confidence.