Knowledge of disability: from unknown unknowns to known knowns
Tuesday 12th February 2019
In Lamb v The Garrard Academy, the EAT considered when the duty to make reasonable adjustments arose, based on the respondent’s knowledge of the claimant’s disability.
Employers have a duty to make reasonable adjustments for employees who are disabled within the meaning of the Equality Act 2010. This can arise where a provision, criterion or practice applied by the employer puts the disabled person at a substantial disadvantage in comparison with persons who are not disabled.
Crucially for the present case, the duty only arises when the employer knows, or could reasonably be expected to know, that the person is disabled. Knowledge can therefore be ‘actual’, or ‘constructive’, meaning that the employer might be expected to infer a certain amount of information without being explicitly told about an impairment.
Ms Lamb was a teacher at the Academy, but was off work because of depression and alleged bullying from February 2012. At this time, Ms Lamb’s line manager was aware that she was not sleeping well, was receiving counselling, and that she was ‘”struggling to cope”. The following month she raised a grievance regarding the bullying, which was upheld. However, the report was found to be inadequate and the decision set aside.
On 18 July 2012 Ms Lamb informed the Academy’s chief-executive that she was suffering from PTSD dating back to childhood, which could be triggered by difficult situations. Ms Lamb was assessed by Occupational Health (“OH”). In a report dated 21 November 2012, OH concluded that Ms Lamb’s depression probably began in September 2011, and could be alleviated by resolving outstanding issues from the grievance. A new investigation commenced in January 2013.
Ms Lamb did not subsequently return to work, and in November 2013 was dismissed due to capability. She brought claims alleging that the Academy had failed to make reasonable adjustments in relation to how it dealt with the grievance report. An important consideration in the case was when the Academy knew that Ms Lamb was disabled.
Decision and comment
The tribunal held that the Academy’s duty arose in November 2012, when the OH report was prepared.
The EAT disagreed and found that the School had sufficient knowledge in July 2012 to reasonably conclude that Ms Lamb’s PTSD could be a disability. At that date, Ms Lamb had been off work for around 4 months, and her grievance remained unresolved. Had an OH report been commissioned at this time, it would have concluded that Ms Lamb’s impairment might well have lasted until September 2012 – so satisfying the ‘long term’ requirement for the PTSD to amount to a disability.
The decision is a useful reminder to employers that failing to consult with OH, or other relevant professionals, at an early stage cannot then be relied upon to deny knowledge of a disability.