Employer’s knowledge of disability
In this recent case, Lamb v The Garrard Academy UKEAT/0042/18 , it highlights the complex area of disability discrimination and the knowledge of the employer. Employers should seek medical advice for those employees on long term sickness absence, and cannot claim to not have knowledge if, on the facts, it is clear that they should have known the condition would meet the definition of disability.
Employers have a duty to make reasonable adjustments for employees who are “disabled” . The duty is only triggered when the employer has actual or constructive knowledge of an employee’s disability. Constructive knowledge arises where the employer could reasonably be expected to know of the disability.
Definition of disability under the Equality Act: An employee is disabled if they have a physical or mental impairment which has an adverse effect on their ability to carry out normal day-to-day activities and the effect is substantial and long-term.
Ms Lamb, a teacher, was off sick from 29 February 2012 because of reactive depression and alleged bullying at work. In March 2012, she raised a grievance about the way was being treated.
On 18 July 2012, Ms Lamb told the school she was suffering from post-traumatic stress disorder (PTSD), caused by childhood experiences, triggered by difficult situation at work.
On 21 November 2012, Occupational Health concluded that Ms Lamb’s symptoms of reactive depression probably began in September 2011.
Ms Lamb complained to an employment tribunal of unlawful disability discrimination, including a claim of failure to make reasonable adjustments linked to her grievance.
The School accepted that she was a disabled person due to PTSD triggered by alleged bullying at work and reactive depression. The tribunal allowed her claim for failure to make reasonable adjustments but only from 21 November 2012. It concluded that the School did not know that she was a disabled person until 21 November 2012 because only then, 12 months after symptoms had first appeared, was the long-term element of the definition of disability satisfied. Ms Lamb appealed to the EAT (Employment Appeal Tribunal).
The EAT decided the School ought reasonably to have known that Ms Lamb was a disabled person by July 2012. They found that two out of the three adjustments she claimed were reasonable and should have been made.