When does an employer have knowledge of an employee’s disability under the Equality Act 2010?

Posted 20/02/2019 : By: Alexander Curnow

This was the question addressed by the Employment Appeal Tribunal in the recent case of Lamb v The Garrard Academy. An individual is considered disabled if they have a physical or mental impairment that has a significant and long term effect on their ability to carry out day to day activities. ‘Long term’ means it has lasted, or is likely to last, more than 12 months. An employer has a duty to make reasonable adjustments once they have actual or constructive knowledge that a member of staff is disabled.

Background

In February 2012 Ms Lamb, a teacher, went on long-term sick leave for depression. A month later, she raised a grievance with the school complaining of two incidents occurring as early as September 2011.

Ms Lamb’s grievances were initially investigated, and upheld, in a report written by the school’s Head of Human of Resources.

Shortly thereafter, the school’s Chief Executive, Mrs Elms, glanced over the grievance report and considered that it was inadequate.

In July 2012, Mrs Elms met with Ms Lamb to discuss the report and told Ms Lamb that she would deal with the two grievances herself.  During this meeting, Ms Lamb disclosed that she had post-traumatic stress disorder (PTSD) stemming from childhood events.

Despite the assurances given to Ms Lamb that Mrs Elms would personally investigate the two grievances, Mrs Elms commissioned a further report from the school’s new Head of Human Resources. This report was not provided until January 2013 and concluded that Ms Lamb’s grievances were rejected.

Despite still being off work, it was not until November 2012 that an occupational health report was completed. It stated that Ms Lamb’s PTSD and depression had begun in September 2011 (therefore lasted longer than 12 months) and that a fully recovery was likely once the workplace issues were resolved.

Ms Lamb subsequently brought a claim in the Employment Tribunal for a failure to make reasonable adjustments on the basis that there were a number of failures in relation to the way the investigation was handled.

The Employment Tribunal

The tribunal found that the school was not under a duty to make reasonable adjustments until the occupational health report was obtained in November 2012. This was the first point at which the school had medical evidence showing that the PTSD and depression had lasted for 12 months.

The Employment Appeal Tribunal

However, Ms Lamb appealed this decision and the Employment Appeal Tribunal held that the school had actual and constructive knowledge of Ms Lamb’s disabilities from the meeting in July 2012 when she expressly raised them and so the duty to make reasonable adjustments arose at this point. The key question, it found, was “what would Occupational Health have reasonably concluded if a referral was made” in July 2012? The answer was that it would show clearly, on the facts, that the workplace issues wouldn’t be resolved until after September 2012 and, therefore, the impairment would likely last for more than 12 months.

Alexander Curnow, Solicitor in our employment team, comments: “The decision of the Employment Appeal Tribunal in this case confirms that employers need to carefully consider any information which might indicate that one of their employees has a disability, whether oral or written, and to act promptly on the information available.”

“When seeking occupational health advice, it is important to ask the right questions of the adviser and to avoid the uncertainty that delays in seeking health advice can cause. In this case, we see the common situation where Ms Lamb’s health problems would almost certainly be resolved upon resolution of her grievance. Consequently, dealing with the grievance sooner may have prevented her from being considered disabled at all, another unintended (and expensive!) consequence of delay.”

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