EAT FINDS AN EMPLOYER IN BREACH OF ITS DUTY TO MAKE REASONABLE ADJUSTMENTS AND CANNOT RELY ON ITS OWN INACTION AND ANY RESULTING IGNORANCE OF THE CIRCUMSTANCES AS A DEFENCE.
A duty to make reasonable adjustments will arise when an employer has actual or constructive knowledge of an employee’s disability.
Knowledge of disability involves actual or constructive knowledge of all of the following:
A physical or mental impairment
Which has a substantial and long-term adverse effect
On the employee’s ability to carry out normal day to day activities
Workplace Lawyers Doyle Clayton recently reported that an Academy should have known that a teacher on long-term sick leave was disabled before it received an Occupational Health report.
In Joanne Lamb v Garrard Academy, Ms Lamb was a teacher at Garrard Academy. In February 2012, she went off sick because of reactive depression following alleged bullying at work.
In March 2012, she raised a grievance complaining about the actions of the deputy head teacher. The grievance was investigated by the Head of HR and upheld. However, the Academy’s Chief Executive considered that the grievance report was inadequate and so she set it aside, without having read any of the supporting documents.
On 18 July 2012, Ms Lamb met with the Chief Executive and told her that she had post-traumatic stress disorder (PTSD) caused by childhood experiences and that it could be triggered by difficult situations.
In November 2012, an Occupational Health report concluded that Ms Lamb’s symptoms of reactive depression probably began in September 2011. It stated that she was likely to recover if the outstanding issues relating to her grievance were resolved.
A fresh investigation into Ms Lamb’s grievance was carried out by the Academy’s new Head of HR when he started in September 2012. The grievance was rejected in January 2013.
Ms Lamb claimed disability discrimination, including breach of the duty to make reasonable adjustments. The adjustments identified related to the Academy’s handling of her grievance. The Academy accepted that Ms Lamb was disabled. However, the tribunal had to decide when the Academy knew or ought reasonably to have known this, as only then did the duty to make reasonable adjustments arise. It ruled that the Academy may have known about Ms Lamb’s PTSD from July 2012, but it did not know that she was disabled until the Occupational Health report of November 2012. This was because, only at this point, one year after symptoms first appeared, did it know that the effects of the impairment were long-term. Therefore, no duty to make reasonable adjustments arose before this date.
Ms Lamb appealed to the Employment Appeal Tribunal (EAT).
The EAT allowed Ms Lamb’s appeal.
It ruled that the Academy had actual knowledge of her disability by 18 July 2012 (when she disclosed her PTSD to the Chief Executive). It considered that the Tribunal’s finding that the Academy actually knew about Ms Lamb’s PTSD in July 2012, and that it dated back to childhood, was irreconcilable with its finding that the Academy could not reasonably have known she was disabled until November 2012. If it was wrong about the date of actual knowledge, the EAT considered that the Academy had constructive knowledge of Ms Lamb’s disability in July 2012. By this point, she had been off work for over four months with reactive depression and her grievance was no closer to being resolved. Had Ms Lamb been referred to Occupational Health in July 2012, it was overwhelmingly likely that it would have concluded that her impairment could last another three months to September 2012.
The EAT upheld Ms Lamb’s complaint, finding that that the Academy had breached its duty to make reasonable adjustments from July 2012.
This case highlights the importance of employers acting promptly in referring employees to Occupational Health and/or seeking information from a medical professional. If an employer ought reasonably to have known that an employee is disabled, it cannot rely on its own inaction and resulting ignorance as a defence.
Source: Doyle Clayton