The Law Shop is now closed. Please click here to find out more.

Reasonable Adjustments And Cost Amended

Hayley Marles - DAS Law

  1. 19 May 2014
  2. Business
  3. 0 comments
Working at work

Anyone in charge of their own business is likely to be aware of the requirement to make “reasonable adjustments” to the workplace to accommodate employees with disabilities. However, some employers may be left wondering exactly what “reasonable” means? Could they, for example, be expected to pay for private medical treatment? According to a recent Employment Appeal Tribunal case (Croft Vets v Butcher), the answer is “yes”.

In this case, the employee was off sick with work-related depression and was referred by the employer to a consultant psychiatrist who, in turn, recommended the employee see a clinical psychologist and attend six psychiatric sessions. Despite having made the initial referral, the employer did not arrange the psychiatric sessions or the appointment with a clinical psychologist. In short, the employer did not follow the recommendations made.

The consultant psychiatrist only gave the treatment a 50% chance of success, but felt, despite this, that it would lead likely lead to an improvement in the employee’s mental state. The Employment Tribunal found that, due to this, the employer’s failure to arrange further appointments amounted to a failure to make reasonable adjustments. The Employment Appeals Tribunal agreed.

The employer argued that they should not have to pay for the medical treatment, claiming that the treatment was ‘general’, but the Employment Appeal Tribunal disagreed, finding that the payments were not for “private medical treatment in general, but, rather, payment for a specific form of support to enable the employee to return to work and cope with the difficulties she had experienced”.

The Employment Appeal Tribunal has recognised the difficulty employers and the Employment Tribunal face in judging whether the issue of cost in implementing an adjustment can, in itself, make it unreasonable. Even in a large organisation, it can be difficult to balance a disabled employee’s need for adjustments against the cost, due to financial priorities and budgetary constraints. Because of the complexity of these situations, the Employment Appeal Tribunal will apply a ‘judgment’ test on a case-by-case basis rather than applying an objective test.

Employers must give careful thought to the issue before deciding against making an adjustment on the basis of cost alone. The case of Cordell v The Foreign Commonwealth Office does, however, provide an interesting contrast. In this case, the Employment Appeals Tribunal declared that the employer was acting fairly in failing to make suggested adjustments on the basis of cost, given that the outlay would have been more than five times the employee’s salary.

The employee in this case, Ms Cordell, is profoundly deaf and was employed by the Foreign and Commonwealth Office. In 2006, Ms Cordell was posted abroad to Poland and provided with full time lip speaker support, consisting of 3 lip speakers, all of whom were provided with accommodation close to Ms Cordell. The average annual cost of this support was approximately £146,000.

After this support system was put into place, a reasonable adjustment policy was introduced by her employer, which was relied upon to ensure that adjustments costing over £10,000 were subject to a specific procedure for addressing reasonableness. It was considered that the adjustment required by Ms Cordell was too expensive, given that the cost amounted to more than five times her salary. This sum was not considered reasonable or proportionate under the policy. Whilst the Employment Appeal Tribunal sympathised with Ms Cordell, it found it could not sanction this cost.

Of course, the issue as to whether a reasonable adjustment policy could be discriminatory in itself would be a separate matter. In light of these considerations, if you, as an employer, find yourself in doubt when faced with having to balance the cost of reasonable adjustments with the finances of the business, it is good practice to seek legal advice.

Share your experiences

Please note: The views expressed in community areas of this site do not necessarily reflect or represent the views of Law on the Web, its owners, its staff or contributors. All comments are moderated prior to publication.

comments powered by Disqus