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5 November 2013

Counselling was a reasonable adjustment

In a recent decision, the Employment Appeal Tribunal (EAT) considers whether it is a ‘reasonable adjustment’ for an employer to pay for private counselling if an employee is suffering from work-related stress and depression. Robert Hickford reports on the implications of the decision.

Facts

B was a reception and finance manager at a veterinary practice. B’s workload had increased substantially, a fact that was noted by her employer in her appraisal, recognising that it would be unsustainable going forward (particularly since the employer was opening a second hospital).

In April 2010, two employees reported that B was “sitting in her office staring out of the window in tears”. In a meeting, B’s employer gave her the option of either continuing with her current job, with support to improve her performance; or to become purely a ‘financial controller’, and receive a lower salary.  Shortly afterwards, B went off sick with depression. She did not return to work.

B’s GP diagnosed her with depression, which was exacerbated by work-related stress.  Her employer asked her to visit a private psychiatrist, to see if there were any steps they could take to assist B in returning to work.  The psychiatrist’s report stated that B was indeed suffering from a ‘severe depressive episode’, caused predominantly by work-related stress, and that she would be off work for at least 3 to 4 months.  He recommended that her employer pay for her to have cognitive behavioural therapy (CBT) and further psychiatric sessions in an effort to optimise her treatment.  There was no guarantee however that B would ever be able to return to work.

The employer asked the psychiatrist a number of further questions but B resigned before the employer had received a full response.  Her resignation letter cited the employer’s lack of contact since her referral to the specialist, and its apparent failure to accept the expert findings.  B alleged that her employer had discriminated against her due to her disability.

The tribunal upheld B’s claims of constructive dismissal and disability discrimination for the employer’s failure to make reasonable adjustments.  It held that the employer should have paid for the recommended counselling treatment.

The employer appealed to the EAT.

Decision

The EAT upheld the tribunal’s decision.  It agreed that the proposed adjustments (the counselling sessions) were sufficiently job-related, since B had been suffering from work-related stress and the aim of the treatment was to help her to return to work.

The EAT also considered that the employer’s lack of contact with B following the psychiatrist’s report had been a contributing factor in its failure to make reasonable adjustments. If they had at least broached the subject with B of any proposed adjustments, this may have gone some way to discharging their duty, but no further contact had been made. The failure to consult further with B was also material to her constructive dismissal claim.

Comment

Whilst this may appear on the face of it to be a worrying extension of employers’ obligations, the EAT has made it very clear that this was a decision reached on the specific facts of this case, and not a general rule that employers must provide payment for private treatment in all circumstances.

It was clear that the majority of the stress that triggered the claimant’s depressive episode was caused by work-related matters.  It is therefore understandable that when the cause can be attributed to the employer’s actions (or inactions), it may be reasonable for them to take steps over and above what might otherwise be considered reasonable to help a disabled employee return to work.

A link to the judgment can be found here.