Employers are under a duty to make reasonable adjustments for employees who are disabled within the meaning of the Equality Act 2010. However, the duty only arises when the employer has actual or constructive knowledge of the disability. Constructive knowledge will arise where the employer could reasonably be expected to know of the disability.
Knowledge of disability must be knowledge of the following matters:
- The physical or mental impairment;
- That the physical or mental impairment is of sufficient longstanding or likely to last at least 12 months;
- That the physical or mental impairment sufficiently interferes with the employee’s normal day to day activities to amount to a disability.
There is no requirement that the employer is aware of the specific diagnosis leading to the impairment.
Lamb v The Garrard Academy [2018]
Case Background
In this recently reported case, the claimant Ms Lamb was employed as a teacher at the Garrard Academy. She went off sick in February 2012 suffering with reactive depression and alleged bullying in the workplace. In March 2012, she raised a grievance about two incidents concerning the Deputy Head.
After investigation, the grievance was initially upheld. However, the Chief Executive of the academy considered that the grievance report was inadequate and set the report aside. The Chief Executive failed to read the supporting evidence supplied with the report.
On 18 July 2012, Ms Lamb met with the Chief Executive and told her that she was suffering from post-traumatic stress disorder (PTSD) stemming from childhood experiences, which could be triggered by difficult situations.
The school eventually referred her to Occupational Health, who produced a report dated 21 November 2012 following their assessment of Ms Lamb. The report concluded that Ms Lamb’s symptoms of reactive depression probably began in September 2011 and stated she had a good prognosis for full recovery, if issues relating to her grievance were resolved. The school proceeded to conduct a fresh grievance investigation and rejected Ms Lamb’s grievances in January 2013.
Ms Lamb issued a disability discrimination claim in the Employment Tribunal, stating that the school should have made the following reasonable adjustments in relation to her grievance:
- The school should have read the grievance report and supporting documentation with a reasonable degree of care;
- The executive team should have acted promptly on the report and completed this before the end of the Summer term in 2012; and
- The grievance report should have been disclosed to Ms Lamb.
Employment Tribunal Decision
The Employment Tribunal found that the school had actual knowledge of the PTSD from 18 July 2012, but that at this point the PTSD was not long-term enough to satisfy the definition of disability. The school’s duty to make reasonable adjustments only arose on 21 November 2012 when they were notified by Occupational Health that the symptoms had lasted longer than one year, and therefore the school was not under a duty to make any of the adjustments suggested by Ms Lamb in relation to her grievance.
Ms Lamb appealed against this decision.
The Employment Appeal Tribunal (EAT) reversed the Employment Tribunal’s decision. The EAT held that the academy had the requisite knowledge of the disability from July 2012. At that point, Ms Lamb had been off sick for four months and her grievance (a triggering factor) was on-going. The school knew that the PTSD went back to childhood experiences and it was therefore implicit that the disability was known to be long-term. The school ought to have known that any earlier Occupational Health referral would have been overwhelmingly likely to conclude that the disability was likely to last for at least a full year.
As the school ought reasonably to have known that Ms Lamb was a disabled person in July 2012, and had actual knowledge of her disability by 18 July 2012, the duty to make reasonable adjustments applied from July 2012.
Comment
This case serves as a warning to employers that claims for a failure to make reasonable adjustments can be successful even when the employer does not actually know about the disability. Employers will not be able to rely on the fact that they have no knowledge of an employee’s disability, where they have no knowledge because of their own failings, for example failing to make an earlier referral to Occupational Health when a condition is brought to their attention.
Employers should ensure that those in HR are trained in how to manage situations involving staff with ill health/disabilities and are aware of their obligations under the Equality Act 2010.
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