Providing private support for public hostility to your employees

By David Whincup on Posted in Mental Health & Wellbeing, Resilience

Are bankers deserving of your pity?   That depends on how you define “banker”.  If you mean one of the minuscule group (often said to be less than a thousand) who could genuinely be said to be personally culpable in causing the financial crisis in 2008, then clearly not.  But if you mean any other of the hundreds of thousands, probably millions, of people employed in the global financial services industry, then yes.  

At least so says a report by Swiss-based UNI Global Union, which notes that 80% of banking and insurance unions in 26 countries cited deteriorating health as a major problem for their members in the past two years.  The UK’s Bank Workers Charity (BWC) reports that around a third of the current and former bank workers who have turned to it for help are suffering from stress, anxiety or depression.  

Part of this is blamed on the strain on bankers’ personal lives caused by job insecurity and long hours worked to make up for reduced staffing levels. However, there is nothing special about bankers in those respects.  Those are world-wide and industry-wide issues, though of course none the more desirable for that reason.  The headlines over the UNI report have focussed instead on the impact of “banker bashing”, the continued overt public and political hostility to the financial services industry as a whole and all those who sail in it, regardless of whether they are Captain or cabin boy.  

Accepting a degree of public resentment is probably part of the price you can expect to pay at the very upper end of the banking world – you make a lot of money, occasionally enjoy it quite ostentatiously and a small number of people who in those respects look a lot like you have caused untold economic hardship by the force of sheer greed alone.  But what about all the others, those who neither did nor could have had anything at all to do with the financial crisis, and yet who find themselves as reviled, as legislated against and as subject to deferrals and claw-backs of their money as those actually responsible?   

It must unquestionably erode one’s morale, resilience and ultimately mental health to know that in the public eye you are dammed by what you do, not what you actually did.  Those UNI and BWC statistics are not surprising.  The question then is what employers dealing with these cases of illness, stress and depression should do about it.   

Of course, employers in all sectors must be realistic about the targets they set and the resources (human and otherwise) that they devote to doing so.  A feeling that your employer is on your side will also go a long way to strengthen your individual resolve.  No doubt there was much goodwill generated within Barclays Bank when CEO Bob Diamond told the UK Treasury Select Committee in January 2011 that “there was a period of remorse and apology for banks – that period needs to be over”.  That is proper uplifting fighting talk for his staff, the sort of thing you want to hear from your leaders (though sadly rather undermined by his resignation the following year over the Bank’s interest rate rigging scandal).  However, if there is a mis-match between what your employer says externally and how it treats you internally, this can do more damage to morale and stress levels than its not saying anything supportive at all.    

As to “banker bashing”, it may be that there is no easy answer.  Perhaps bank workers must simply wait, like employees of the Crown Prosecution Service, the Border Control Agency, MPs, lawyers or estate agents – no, strike that last one – until the burning glare of public ire just moves on to something else.  It can only be a matter of time.

Do US San Francisco Workers Now Have A Right To Telecommute? Not Exactly, But They Do Have a Right to Ask

By Squire Patton Boggs on Posted in Employment Policies

Last week, San Francisco adopted the Family Friendly Workplace Ordinance [pdf] that requires San Francisco employers to consider requests from employees for flexible schedules (reduced hours or flex start times), predictable schedules, or special working arrangements (such as telecommuting) to accommodate caregiving responsibilities.  This new ordinance takes effect January 1, 2014 and covers San Francisco employers with 20 or more employees.  Covered employees are those working at least eight hours a week who have been employed at least six months.  Here is a brief summary of how the ordinance will work:

The SF Office of Labor Standards Enforcement (“OLSE”) will soon issue, and prior to 1/1/14 employers must post, a notice informing employees of their right to request a flexible or predictable working arrangement.

  • Employees may request a schedule change/arrangement verbally at first, but employers may direct the employee to put the request in writing.
  • Employers must meet with the employee to discuss the request within 21 days of notice of the request.
  • Employers must respond to the request in writing with an approval or denial within 21 days of the meeting; any denial must identify a bona fide business reason for the denial.
  • If the request is denied, the employee may appeal to the employer for reconsideration of the request within 30 days of the decision.
  • If appealed, the employer must again meet with the employee within 21 days of notice of the appeal and then provide a final decision within 21 days of that meeting with an approval or denial of the request.
  • Employees may make a request under the ordinance two times per year, unless the employee has experienced a “Major Life Event” such as the birth of a child, placement of a minor in his/her care, or increase in caregiving responsibilities for a person with a serious health condition, in which case he/she may make an additional request.
  • Employers must keep records of their compliance with the ordinance for three years from the date of each request for a flexible or predictable working arrangement.

Employers who fail to comply with this ordinance or who retaliate against employees who assert their rights under the ordinance will be subject to penalties of up to $50 per day per employee, as well as possible legal action by the OLSE. 

And the Beat Goes On: You’ve Still Not Heard the Last of Brinker (U.S. – California)

By Squire Patton Boggs on Posted in Policies, Wage and Hour

In April 2012, we covered the California Supreme Court’s long-awaited clarification on state law regarding when and how meal and rest periods must be provided to non-exempt employees.  Of note, employers must “provide” California employees with required meal breaks—meaning it need not police employees or force them to take meal breaks—after no more than five hours of work and must “permit” rest breaks to be taken for every four hours of work or major fraction thereof, meaning more than 2 hours, unless total daily work time is less than 3½ hours.  

On remand from the Supreme Court, the trial court recently ruled on the plaintiffs’ motion to certify a Meal Period Subclass on claims that all California employees were denied meal periods because defendant Brinker’s corporate meal period policies were unlawful.  Much is at stake:  the class period–which extends over 13 years—captures over 100,000 past and present nonexempt Brinker employees, including workers at restaurants such as Chili’s Grill & Bar, Maggiano’s Little Italy, Romano’s Macaroni Grill, Corner Bakery Cafe, and Cozymel’s Mexican Grill.  

In arguing for certification, the plaintiffs asserted that Brinker’s corporate policies are facially unlawful because: (1) before 2002, it had no meal period policy; (2) between 2002 and 2012, its policy failed to inform employees of their right to take a second meal period; and (3) from 2002 to the present, its policy failed to accurately state the specific times employees were entitled to take meal periods.  Plaintiffs argued that the facial validity of Brinker’s meal period policies is a common question which predominates the litigation and makes class treatment appropriate. 

On September 26, the trial court agreed [pdf], stating that for purposes of determining whether the plaintiffs’ theory of recovery is susceptible to common proof, the court must assume the plaintiffs would in fact prove the policy is invalid.  Based on that assumption, the court noted that the “facial” validity of a uniform written policy “is a prototypical instance where proof as to one will provide proof for all.” 

The court rejected the idea that individualized inquiries predominated on the theory that—whether the policy is facially valid or not—Brinker could only be liable for meal period violations if employees actually missed their breaks.   In the court’s view, ““[w]hether or not the employee was able to take the required break goes to damages, and ‘[t]he fact that individual employees may have different damages does not require denial of the class certification motion.’”  Specifically, because the plaintiffs had limited their theory of liability to one that relied on the facial invalidity of Brinker’s policy (which theory could be proved on a common basis), it was irrelevant for purposes of class certification that some individual employees conceivably could establish a violation of meal period laws by relying on individualized evidence “unique to their particular circumstances” because those employees could decide whether to participate in the class as defined by the plaintiffs or to instead opt out and pursue a claim based on their own individualized evidence.

Though the trial court’s ruling has no precedential effect, we can assume that attorneys are tracking all rulings in this highly-publicized case.  We can thus anticipate that plaintiffs filing future wage and hour class actions will attempt to limit their theories of liability to those that can be premised on the alleged facial invalidity of a corporate policy so as to increase the likelihood that a presiding court will find a common question justifying class certification.  Have you reviewed your policies lately? 

What UK business can learn from the SAS

By Squire Patton Boggs on Posted in Healthcare, Mental Health & Wellbeing

A colleague of mine heard the Chief Medical Officer for the SAS say at a recent conference that, “What we have in the SAS is love for each other”.  When would you ever hear this sort of comment in the Board Room of UK Ltd?   How many managers or partners would say this of their colleagues? Advertisers know that emotional responses are around four times more powerful than rational ones and can therefore drive buying decisions by pulling emotional strings, yet how many of us are willing to recognise and talk about emotions at work?  Though many of us realise in the abstract that emotional engagement could be far more powerful than rational engagement, putting emotional intelligence – or more radically, “love” – on the agenda at a Board meeting could, I imagine, be more than a little controversial.  

I would like to throw this challenge out to UK businesses: is the way we are working, really working? Isn’t it time to recognise and work with the emotions of our leaders and workforces in order to build true long-term resilience, engagement and health?    

And so to the link with stress management. We tend to deal with stress management reactively rather than proactively. Lawyers Hogan Lovells announced in The Lawyer on 13 September that they will be reviewing stress management in the tragic wake of a partner’s suicide. The Firm’s Head of Diversity and Inclusion, Carolyn Lee said, “Many corporations shy away from the topic of stress because they don’t want to be perceived as a stressful place to work”.  That is certainly true, but it does not represent a solution.     

To manage stress as fully as possible in the workplace it is necessary to understand that it is not just the situation that causes our stress responses but also the emotional importance which we assign to a given event or situation.  If employers really want powerful and sustainable resistance to stress then they must build the emotional resilience of the workforce. We must treat the causes of stress, not just the symptoms, in order to achieve sustainable long- term effectiveness.    

In recent years, the “go-to” strategy to deal with the economic challenges has been cost-cutting and process efficiency – which often equates to asking more for less from our employees. It is no wonder that this has often led to low engagement, poor health and absenteeism.  One of the most important assets in any organisation is the people – yet how many leaders honestly ask, “How do we really create a resilient workforce?”  If organisations could take a fresh approach – work with their people to help them feel valued rather than just lucky to have a job – what difference would that make? How much more engaged would the workforce become and how much might this raise their resilience and consequently productivity?   

 My personal view is that, as a nation, we cannot afford to ignore this for much longer. Stress is inevitable and sometimes healthy, but more often not.  It is the effective and systematic management of stress that will set apart those people and organisations who can succeed in life.    

It is my Number One belief that there must be more than a shift in mindset. The ability to shift the emotional response to stress is the key is to stopping the damaging physical effects which stress can have on your body. By harnessing this control we can keep our workforce in a place of positive performance to their own benefit and that of the employer rather than stand helplessly by as they crash, exhausted and alienated.

Caught with your trousers down? Dismissal may still be below the belt

By Squire Patton Boggs on Posted in Dismissal, Misconduct, Termination

Recently my eye was drawn to the headline: “PC caught having sex on duty reinstated because his firearm was within reach”.  For purely professional reasons, obviously, one reads on.

PC Shaun Jenkins was the sort of upstanding individual Gwent residents would want and expect to be a part of their local police force, a recipient of official commendations for courageously preventing suicides and bringing brawling thugs to justice.  However, whilst on armed patrol duty one day, he slipped off for a 40-minute tryst with a married woman in his house, leaving his colleague in the patrol car outside. Quite what the colleague thought Jenkins was doing is not reported.  The outraged woman’s husband reported the incident and Jenkins was dismissed for gross misconduct. However, he appealed to the Independent Police Tribunal and has now been reinstated.

The somewhat bemusing reasoning behind the reinstatement decision included that his actions did not pose a risk to public safety because he could have been back on duty “within a minute or two” (presumably somewhat flustered) and that he was still contactable by radio; the delay was akin to his taking a tea break or going to the toilet (for 40 minutes?); and his weapon was never out of his control as it was still attached to him, albeit in a holster around his ankles.  As mitigation goes it seems a bit marginal to me, but on such fine points do careers turn, apparently.

One might agree with the Independent Police Complaints Commission that Jenkins’ reinstatement undermines public confidence in the credibility of the police discipline system. After all, it would not be deemed acceptable behaviour in most employments, let alone for those who carry firearms. Perhaps Gwent Police’s and Jenkins’ definition of “providing service to the public” is somewhat broader than one might normally have anticipated.

There is no law saying that people cannot have sex while at work, but an employer does have a right to expect some minimum standards of behaviour on company time. With longer working hours, romantic relationships in the workplace have inevitably increased. Apparently 1 in 10 have had sex in the workplace and almost 40% have had a relationship with a co-worker, according to this particularly highbrow little survey.

You hope that your employees will have the common sense to act discreetly and for any such romance not to impact adversely on their working performance. Just as you surely would not need a policy declaring “Smearing the walls of your office with marmalade may result in disciplinary action”, you might assume the same would apply for “sex in working hours”. However, surely we are not at the point suggested in one Australian case (see David Whincup’s blog of 17 September 2012) where the employer was disconcertingly held liable for injuries sustained to an employee while having sex on a business trip, due to the absence of any clear instruction that she should not?

The unappealing prospect of an harassment claim when a relationship between two employees turns sour or of having to deal with a distracted, love-struck and under-performing employee has led many employers to provide formal or informal policies on managing office romances. Something relatively commonplace in the US and sadly becoming more popular in the UK is the request that employees sign up to a “love contract”. 50 Shades readers may, however, be disappointed – this commonly requires an employee to reveal any in-house romantic relationship to management, confirming its consensual nature and typically includes a number of employee undertakings such as that the relationship will not have a negative impact on work and there will be no public displays of affection or other behaviour that might create a hostile, offensive or, frankly just embarrassing work environment for others.  Bit of a mood-killer, really.

While the reinstatement decision taken in the Jenkins case may at first seem surprising, perhaps it came down to Gwent Police not making it clear enough such activity would constitute gross misconduct with the consequence that had he not been reinstated, it may have faced losing any subsequent claim.  One can imagine deflated senior officers struggling to provide a comprehensive list of all the other things you should not do while wearing a gun on the job.   The mind boggles.

Restrictive Covenants Initiative

By Squire Patton Boggs on Posted in Confidentiality, Restrictive Covenants

Thomson v Apem (High Court)

“Can you stop 18 employees leaving for a competitor”

A recent High Court case (Thomson Ecology Limited & Others v Apem Limited, Hall & Others) serves as a useful reminder to employers about the importance of ensuring that you have appropriate restrictive covenants and confidentiality clauses in place for key staff. Including express clauses will be preferable to leaving things to chance by relying upon ‘implied’ duties.

One of the Defendants Mr Hall, was the most senior member of staff (Operations Manager, but not a statutory director) at a site owned by Thomson at Letchworth. In late 2012/early 2013, he and 17 colleagues moved from Thomson to start work for Apem, a competitor.

In total, 15 alleged breaches of contract were levelled against Hall by Thomson.  It was claimed that he owed fiduciary duties to Thomson by virtue of the senior position he held there (even though it was not a statutory directorship) and that in common with all employees, he was bound by an implied duty to act in good faith towards his employer. Several of the allegations related to the arrangements that were made to enable Hall and his colleagues to move to Apem. Effectively, the allegation was that he had been spending more time preparing the ground for a mass defection than focusing on his existing job for Thomson.

Hall’s most recent contract of employment was issued to him in 2003. It contained a generic confidentiality/intellectual property clause, but no restrictive covenants at all. There was an updated job description issued upon his promotion to Operations Manager in 2011, but still no contract changes were made.

The claim by Thomson centred on two principal allegations:

1) that Hall should have (but failed to) report the threat to Thomson from a competitor firm;

2) that Hall actively took steps to assist a competitor (Apem) in helping its recruiting of a number of Thomson’s employees.

The Judge ruled that Hall was indeed subject to fiduciary duties by reason of his seniority at the site, and therefore that he was required to report the threat from a competitor to the business (i.e. the approaches to its employees), to his current employer. The Judge also found that Hall had sufficient clarity in his updated job description to demonstrate that he was required not to do anything to encourage or assist staff to move elsewhere. Summary judgment was awarded in Thomson’s favour in relation to the good faith claim, with the other claim going to a full trial (yet to be heard) to determine whether on the facts he had breached that duty.

In order to protect your confidential information and intellectual property, and to restrict the ability of employees to damage your business by competing against you after they leave, it is best to have express clauses covering each of these areas. That is especially apt where the employee in question is a senior level employee (in this case, the most senior at the site in question), and/or a long serving employee who is likely to have a great deal of knowledge about your business, your clients, and other commercially sensitive information.  Had Hall not been the most senior employee at Letchworth but lower down the ladder, the fiduciary duty argument run by Thomson would have been much harder, but the issue could easily have been put beyond such argument by a clear statement in Hall’s contract that he was obliged to report to his employer any threats to the business or (more specifically) any offers of employment to him and/or his colleagues which might constitute such a threat.

Squire Sanders is currently running a series of Webinars focusing on restrictive covenants around the world. We will also shortly be launching a pocket guide to restrictive covenants in different countries. If you would like to receive a copy of this guide, please contact me.

US New York Wage Deduction Regulations Take Effect

By Meghan Hill and Lew Clark on Posted in Policies, Wage and Hour

As we reported earlier, last year, New York amended its wage deduction statute [pdf] and greatly expanded categories of permissible deductions from employees’ pay.  In an earlier post, we discussed the regulations interpreting Labor Law Section 193 proposed by the New York Department of Labor.  The New York Department of Labor has now adopted those proposed regulations [pdf], and they went into effect on October 9, 2013.  

Employers should review the permissible deductions for the “benefit” of the employee to identify if there are additional benefits they want to offer employees through payroll deduction.  Additionally, employers should consider developing policies, procedures, and notices that conform to the requirements of the regulations, in order to permit them to make deductions for overpayments and for advances.  For more detail regarding the regulations, please see our previous post and publication [pdf]. 

Moving on results in being moved on via Facebook in Australia

By Squire Patton Boggs on Posted in Dismissal, Termination

“You are a horrible human being.  Just wait for karma to come back and bite you in the ass.”  Notice of dismissal, or not?  

If you felt sorry for Carrie Bradshaw as she was dumped by post-it note in Sex and the City, spare a thought for Sheridan Corrie, whose employment in Australia was terminated, probably deliberately, by Facebook message.  

When Ms Corrie responded to the message above to ask what she had done, she was told that “If it’s true that you’re engaged whilst still being married, we all think (Blair included) that it’s inappropriate for you to come back to work“.  Both posts came from Lana Denys, daughter of Blair, one of the Company’s two directors.  

At the time, Ms Corrie was on annual leave, her marriage to the nephew of one of the Directors had recently ended, and she had become engaged to someone else within just a few months.  Quick work indeed, but was it really the employer’s business, let alone that of one director’s daughter?  

The following day, in seeming reinforcement of the message, Ms Corrie’s work mobile phone was disconnected and her pay stopped.  She brought an unfair dismissal claim, in response to which the Company stated that she had “too hastily become engaged again“, and that this had upset Lana Denys.   

As a threshold issue, the Fair Work Commission in Melbourne was required to consider whether the Facebook messages constituted a dismissal in the first place.  It was satisfied that they did.  Although Lana Denys was not a manager and so had no positional authority to dismiss Ms Corrie, both of the two Directors were aware of the messages she had sent and each understood that Ms Corrie believed that she had been dismissed with their authority.  Neither took any action to correct that misunderstanding, if misunderstanding it had been.  The dismissal was considered to have become effective the following day when she ceased to be paid and her work phone was cut off.   

Having determined that Ms Corrie was dismissed by the employer, the claim will now be allocated to a member of the Commission to determine whether dismissal was fair or not.  This will include considering whether an employee’s moving on too quickly in her personal life is a valid reason for dismissal – this sounds silly, but it is potentially arguable if the dumping of the nephew had been in such a way or for such a reason (like being engaged to someone else, perhaps? – just a thought, of course) that irreparable damage would be done to the close working relationships necessary within a very small company like this – and also whether the Facebook messages really gave Ms Corrie the opportunity to respond which a fair dismissal requires.  Watch this space!

Coronation Street, two Advocate Generals and surrogacy in Europe

By Squire Patton Boggs on Posted in Equal treatment

Hot on the tail of UK soap opera Coronation Street’s recent surrogacy plot line (so I have been told) are two recent Advocate General opinions on the topic of intended mothers’ rights to maternity leave under the EU Pregnancy Working Directive (PWD). Unhelpfully, one opinion states that intended mothers are entitled to maternity leave and the other that they are not.  Who said the law was an exact science?

The PWD states that all workers in the EU are entitled to at least 14 weeks’ maternity leave if they: (1) are pregnant, (2) have recently given birth and/or (3) are breastfeeding. However, there is no specific provision in the Directive covering the surrogacy scenario and so, in two separate recent cases, national courts of EU member states have referred the matter to the European Court of Justice (ECJ).

Prior to any ECJ ruling there is generally an Opinion by one of the eight Advocates General with the intention to guide the Court. However, the Court can choose whether to follow the opinion or not and does not invariably do so.  On 26 September 2013, AGs Wahl and Kokott delivered their separate Opinions in those two cases. It was not immediately clear whether either of them had discussed their own case with the other. Either that or they had just chosen to ignore the other. Perhaps the two AGs are not regular lunch companions at the ECJ canteen in Luxembourg. In any event, the Opinions have added no clarity to the question at all.

In AG Juliane Kokott’s Opinion, an intended mother who receives a baby via a surrogacy arrangement does have the right to maternity leave under the PWD, whether or not she intends to breastfeed the child. Particular attention was paid by this AG to the importance of protecting the special relationship between a woman and her new baby; to the intended mother being wholly responsible for the child; and to the need to bond (which was said to be even more challenging and necessary where she is not the natural mother). The AG noted that if intended mothers were denied leave for this, this would be to the detriment of children raised by surrogate mothers. It was made clear however, that there should not be a doubling of maternity leave entitlement and therefore the leave taken by the actual mother must be deducted.

In AG Nils Wahl’s Opinion, however, an intended mother does not have the right to maternity leave under the PWD.  He stressed that the purpose of the protection afforded under the PWD was the health and safety of workers, not their children or intangibles such as the mother-baby bonding process. In relation to the importance of the “special relationship”, he said that this was only in the context of the physical processes of childbirth and breastfeeding.

So where does this leave us? Neither of the above Opinions is yet binding law and it will be for the ECJ to decide which approach, if either, it follows. However, the decision is likely to be some months away. It is clear that there is a gap in the protection of intended mothers under a surrogacy arrangement by comparison with adoption. Legislation would ideally be enacted, though this is unlikely to be at EU level given the difference of opinions in relation to surrogacy across the EU member states – in France, for example, surrogacy arrangements are still unlawful.  We therefore await the ECJ decision with interest.

Unfortunately, the Coronation Street storyline does not give away the scriptwriters’ thoughts in relation to this issue. Tina became the surrogate mother of Gary and Izzy’s baby. After the premature birth of the child, Tina did not use her full maternity entitlement since she was (possibly straight after the conclusion of her two week compulsory leave) back pulling pints in the Rovers Return. No risk of the doubling of maternity leave there, then.  What a shame that the Coronation Street writers chose not to discuss this issue in detail. It may be that the ECJ could do with the additional guidance on the point!

UK vetinerary practice criticised for medical treatment of sick employee

By Squire Patton Boggs on Posted in Discrimination, Harassment

This is not quite as bad as it first sounds.  Where a provision, criterion or practice (PCP) applied by an employer places a disabled employee at a substantial disadvantage by reason of his disability, then the Equality Act 2010 says that the employer has to make reasonable adjustments to prevent the PCP having that effect.  Traditionally, that has meant employers making adjustments to the job and not taking steps to cure or mitigate the employee’s disability itself.  There has been no obligation on the employer to provide or fund medical treatment for the employee even if that would permit him to work or return to work more easily.  That previously clear dividing line in the obligation to make reasonable adjustments has been blurred to some extent by last week’s decision in Croft Vets Limited –v- Butcher.   

Butcher was employed as Finance and Reception Manager at Croft but was overworked to the point where it was ultimately reported to the employer that she “was sitting in her office staring out of the window in tears”.  She went off sick with depression and never returned.  Initially, Croft paid for a private Consultant Psychiatrist to examine her and prepare a report.  He suggested that “consideration be given” by Croft to its funding six psychiatric and counselling sessions at a total cost of about £750.  However, he fully accepted that even with this treatment, Butcher could remain unfit for many months and may even never recover sufficiently to return to work.  Croft did not agree to provide these counselling sessions nor consulted Butcher about them, but instead posed a number of additional questions to the Consultant about her medical condition.  Both she and the Employment Appeal Tribunal saw those issues as addressed more to Croft’s liability for the illness than to the steps which it could or should be taking to accommodate it.

Butcher resigned, claiming that Croft’s failure to provide the recommended psychiatric and counselling sessions amounted to a failure to make reasonable adjustments for her disability.

Croft disagreed.  It said that the treatment could have been obtained by Butcher via the National Health Service, which would have been free, and that she herself had taken no steps to do so.  In those circumstances, said Croft, it was not reasonable for it to have to pay, especially in view of what were admitted to be the treatment’s limited prospects of success. However, the EAT dismissed this argument for want of evidence, querying not only whether the NHS could indeed provide such treatment, but also the timescale in which it might be available.

Second, Croft said that requiring it to pay for medical treatment for Butcher would cross the line from reasonable adjustment into medical treatment.  However, the EAT noted that among the examples of reasonable adjustments given in the legislation is “giving or arranging for training or mentoring”.  It considered that the sessions recommended by the Consultant were not strictly medical treatment for Butcher, but were instead to provide her with a specific form of support giving her a better chance of returning and coping better with the difficulties she had been experiencing in the office.  Therefore the psychiatric sessions recommended fell within the mentoring example in the legislation.  Butcher’s illness was mental, but the psychiatric support recommended was no different in concept from the suggestion that the employer spend the same money on, say, an ergonomic chair for someone with an otherwise incapacitating back problem – this was not about funding medical treatment, but about the provision of a specific form of support in the workplace.

The lesson for employers dealing with a medical recommendation of this sort is therefore to consider carefully whether what is being recommended is medical treatment or a form of support.  Is it aimed at lessening the impairment which is an essential part of any statutory disability, or at lessening the impact of that impairment on the individual in the workplace?  If it is the latter, then even though it may look like medical treatment, it could well constitute a reasonable adjustment.

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