Stressed at work: When does an employer have to pay for an employee’s medical treatment?
Overview of Case
On 2 October 2013 the Employment Appeals Tribunal (EAT) issued Judgement in the case of Croft Vets Limited and others v. Butcher.
The EAT held that by failing to pay for an employee with occupational stress and depression to have psychiatric treatment, an employer breached its duty under Section 20 of the Equality Act 2010 to make reasonable adjustments.
The Equality Act 2010 requires an employer to make “reasonable adjustments” where it applies a provision, criterion or practice (a PCP) that puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled.
PCPs should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions
For the duty to arise, an employee must be placed at a “substantial disadvantage” in comparison with persons who are not disabled. Therefore, a comparative exercise demonstrating substantial disadvantage is required.
“Substantial” is defined as “more than minor or trivial”. This is a low threshold, so it will often be relatively easy for a tribunal to conclude that a claimant suffered such a disadvantage.
Mrs Butcher was an employee who worked as a finance and reception manager in a veterinary practice. Due to an expansion of her employer’s practice her role increased. As a result of that expansion, she acquired additional responsibilities, including implementing a new telephone system and introducing a seemingly difficult new IT system. She developed work-related stress and she suffered from severe depression.
On top of the additional duties, Mrs Butcher also handled a range of administrative and reception duties as well as the practice’s bad debt.
Outside of work, Mrs Butcher and her husband had recently completed what is described in the Judgement as a “protracted house move”. She had been reported by colleagues as being tearful at work shortly before going off work. Her first day off was also the latest in a series of meetings arranged by her employers to discuss how she was coping with her job.
A couple of months after going off work, the practice sought to refer Mrs Butcher to a private consultant psychiatrist. The psychiatrist saw Mrs Butcher a couple of months later and found that “predominantly work related stress had triggered a severe depressive episode with marked anxiety”. He recommended treatment including a course of 6 psychiatric sessions in order to optimise her recovery.
About three months after the date of the psychiatric report, Mrs Butcher resigned, claiming disability discrimination. She raised an Employment Tribunal claim for unfair constructive dismissal. Mrs Butcher’s employer had not taken any steps to progress the course of treatment suggested by the psychiatrist. Furthermore she had not heard from her employers since she had met with the psychiatrist.
Perhaps the most significant aspect of the Judgement is the Employment Appeal Tribunal’s decision that paying for Mrs Butcher’s course of cognitive behavioural therapy and psychiatric counselling amounted to a reasonable “job-related” adjustment, which the employer was duty bound to undertake.
The rationale for this appears to be that (a) the treatment would have been aimed at helping Mrs Butcher return to work and perform her roles; and (b) there were reasonable prospects that this adjustment would have been successful.
Looking at the implications of the case more widely, could it now be argued that employers owe a duty to pay for private medical treatment of employees?
Employers will surely seek to distinguish future claims by relying on the fact-specific nature of this case. In doing so, the key features of this case include,
1. That the employee’s health problems were very clearly caused to a large extent by her work.
2. That the employee was relying on an opinion obtained by her employers from an expert upon which they had relied in the past.
3. That there were very clear and well documented examples of how the employee’s role had expanded (and the emotional effect this appeared to have on her).
One wonders if the veterinary practice might have avoided dealing with Mrs Butcher’s claim if they had had a well-prepared stress at work policy. Such a policy might have alerted them to the extent to which Mrs Butcher’s role had grown and to external stressing factors.
This decision highlights the potential risk to employers when referring an employee to a company doctor and ignoring any recommendations to assist the employee returning to work. Whilst the Tribunal has not held that employers are required to pay for a disabled employee’s private medical treatment in general, care should be taken when a physician recommends specific private healthcare to assist the employee.
Could Mrs Butcher have brought a Personal Injury claim?
Occupational stress is just one area where one set of facts may give rise to claims both in the Employment Tribunal and the Civil Courts.
The Sheriff Court and Court of Session in Scotland have jurisdiction to hear claims of personal injury arising from occupational stress. It is important to note, however, that mere “stress at work” is unlikely to be enough to form the basis of a successful personal injury claim. As in Mrs Butcher’s case, a recognised medical or psychiatric condition requires to be diagnosed by an expert and causally connected to the working conditions she was confronted with.
Perhaps the biggest stumbling block for occupational stress claims in the Civil Courts is proving that the psychiatric harm was reasonably foreseeable. Put simply, the employee has to prove that the employer could reasonably have foreseen that the employee, if exposed to such working conditions, was likely to suffer psychiatric injury.
Foreseeability is considered by reference to the particular employee and not to employees generally or to persons of “ordinary fortitude”. Care should be taken by employers and employees alike to obtain appropriate legal advice on both the Employment Tribunal and the Civil Court aspect of a stress at work claim. Particular care should be taken to observe the strict time frames which apply to raising Employment and Personal Injury claims. If you are affected by any of the matters referred to in this article, you should take legal advice without delay.
The judgment extends to about 15 pages and is worth reading if the topic interests you. It encompasses matters far beyond the topic of this short briefing.
This Briefing has been produced for information purposes only and is based on the law and other information available at the time of writing. We cannot be held responsible for any losses incurred through acting or failing to act on the basis of anything contained in this Briefing.
If you require advice on any of the matters referred to, please contact us so that we can advise you, taking account of your own particular circumstances and requirements.