How far does an employer have to go? Reasonable adjustments for psychiatric disability
A recent Employment Appeal Tribunal case (EAT) had to decide whether an employment tribunal was right to find that an employer failed in its duty to make reasonable adjustments for a disabled employee suffering from depression when it did not act on a doctor’s recommendation to pay for private psychiatric services.
The employee had suffered from work-related stress and severe depression. Having been absent from work for a number of months, she was assessed by a consultant psychiatrist to see if there were any steps that could be taken to facilitate her return to work. The consultant recommended paying for specialist cognitive behavioural therapy and a further six psychiatric sessions. The employer did not act on his recommendations and the employee resigned a few months later claiming disability discrimination (caused by a failure to make reasonable adjustments) and constructive dismissal.
The original Employment Tribunal had found that a provision, criteria or practice (PCP) – her returning to work to perform the essential functions of her job because of the nature of her disability- placed her at a substantial disadvantage, and that the employer had provided no reasons for failing to make the reasonable adjustments recommended by the psychiatrist to alleviate this disadvantage. The tribunal also upheld her constructive dismissal claim. The employer’s failure to follow medical recommendations, without any explanation or consultation, amounted to a fundamental breach of trust and confidence.
The employer appealed against the decision, but the EAT dismissed it. The EAT concluded that this was a reasonable adjustment that could have reduced the substantial disadvantage caused by the PCP. The employer’s conduct amounted to a fundamental breach of trust and confidence so this was also a constructive dismissal.
This means that employers with absent employees should always examine the extent of any recommended reasonable adjustments, including costs and the impact on the working environment.
Further guidance is available in the Equality and Human Rights Commission (EHRC)
EHRC Employment Code (chapter 6). In particular it advises that the following are some of the factors which might be taken into account when deciding what is a reasonable step for an employer to have to take:
• whether taking any particular steps would be effective in preventing the substantial disadvantage;
• the practicability of the step; the financial and other costs of making the adjustment and the extent of any disruption caused;
• the extent of the employer’s financial or other resources;
• the availability to the employer of financial or other assistance to help make an adjustment (such as advice through Access to Work); and
• the type and size of the employer.
If you need advice on how to help an employee return to return to work after a period of long-term sickness absence, please get in touch.
Posted on 19 Nov 2016