When does an employer have “knowledge” of an employee’s disability in order to trigger their duty to make reasonable adjustments?
This question was considered by the EAT in the case of Lamb v The Garrard Academy. The date which an employer should be aware that an employee is disabled is important as this triggers the responsibility for them to make reasonable adjustments.
The facts of the Lamb v Garrard Academy case:
Lamb suffered from depression following alleged bullying at work and was off sick from 29th February 2012. Shortly afterwards she raised a grievance over two separate incidents relating to the Deputy Headteacher.
An investigation took place undertaken by the school’s Head of HR. Their report upheld the grievance but was deemed to be an inadequate investigation by the Chief Executive. They did not then take account of the supporting documents.
On the 18th July 2012 Lamb met with the Chief Executive. At that meeting Lamb confirmed that she was suffering from PTSD linked to childhood experiences. The Chief Executive said she would deal with the outstanding grievance but a month later wrote to Lamb that this was no longer the case.
On 21st November 2012 Occupational Health suggested that Lamb’s depression had begun in September 2011. They also suggested that if the grievance issues were fully resolved that Lamb could recover fully.
A fresh investigation into the grievance was carried out. Following this the grievance was rejected in January 2013.
Lamb then brought a claim of disability discrimination including a claim of failure to make reasonable adjustments.
Employment Appeal Tribunal:
The EAT found that the duty to make reasonable adjustments was triggered on the 18th July 2012 not the 21st November 2012. They found that from the meeting with the Chief Executive, the Academy knew of Lamb’s PTSD and that it was a long term problem going back to her experiences as a child.
The EAT also found that some of the proposed adjustments sought were reasonable.
What can we learn from this?
An employer cannot rely on poor management practice to argue that it wasn’t aware of an employee’s disability and therefore that the duty to make reasonable adjustments was not triggered. In this case the EAT looked at when the Academy should realistically have known about Lamb’s disability. The EAT commented that had an Occupational Health referral been made in July 2012 ‘the overwhelming likelihood’ is that they would have concluded the impairment could well last to September 2012 which would have been 12 months since the beginning of the symptoms.
Therefore when dealing with a sick employee, employers should make reasonable enquiries to find out whether an employee might be covered under the Equality Act 2010 for disability.
Additionally, employers should look to investigate and resolve grievances as quickly as possible. As was the case here, not resolving a grievance over an extended period of time can result in further problems. If the original grievance report had not been set aside or if whatever flaws it contained had been remedied by further investigation shortly after receipt by the Chief Executive, it is conceivable that far less issues would have resulted.
For advice on managing disabilities in your work place, please contact HR Consultant Nick Brown on 0161 475 7674 or Stephen Foster, Partner in our Education team on 0161 475 7664.