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Constructive knowledge of disability: when should employers reasonably know of an employee’s disability?

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In the recent case of Lamb v. The Garrard Academy the Employment Appeal Tribunal (EAT) considered at what point employers have a duty to make reasonable adjustments under the Equality Act 2010 (the Act).

The law

Under the Act, employers have a duty to make reasonable adjustments for employees who are disabled within the meaning of the Act. However, the duty to make reasonable adjustments only applies when the employer has “actual” or “constructive” knowledge of an employee’s disability. Constructive knowledge under the Act arises where the employer could reasonably be expected to know of the disability even if it is in fact unaware of that disability.

Background

Ms Lamb was a teacher at the Garrard Academy. She was absent from work from 29 February 2012 suffering from reactive depression and alleged bullying. In March 2012 Ms Lamb raised a grievance against the deputy head complaining about the way she had handled two incidents involving pupils. After an investigation the head of HR upheld Ms Lamb’s grievance but the investigation report was set aside by the chief executive in July 2012. On 18 July 2012 Ms Lamb informed the chief executive that she was suffering from post-traumatic stress disorder (PTSD). In November 2012 Ms Lamb was assessed by Occupation Health (OH). The OH report was submitted to the Academy on 21 November 2012 and concluded that the symptoms of reactive depression probably began in September 2011. The Academy conducted a new investigation, which rejected her grievance in January 2013. Ms Lamb brought a claim for a failure to make reasonable adjustments to the employment tribunal. One of the primary issues that the tribunal was required to consider was the date from which the Academy had actual and constructive knowledge of Ms Lamb’s disability and was therefore obliged to make reasonable adjustments with regard to the investigation process and the investigation report. The tribunal concluded that the Academy had actual knowledge of Ms Lamb’s PTSD from 18 July 2012. However, the tribunal found that it did not know that she was disabled until 21 November 2012 (one year after her symptoms had first appeared), which was when the Academy clearly knew that she satisfied the “long-term” test for disability under the Act. Ms Lamb appealed.

EAT decision

The EAT disagreed with the tribunal’s findings. It held that actual knowledge of PTSD (which is usually a long-term condition) together with other information of Ms Lamb’s impairment was “irreconcilable” with the tribunal’s findings that the Academy neither knew (actual knowledge) nor could reasonably have known (constructive knowledge) about Ms Lamb’s disability until 21 November 2012. The EAT found that the date of constructive knowledge was by early July 2012. This was on the basis that, had the tribunal asked itself the correct question, namely “what would Occupational Health have reasonably concluded if a referral was made [in July 2012]”, it was highly likely that it would have concluded that Ms Lamb’s condition could last until September 2012 (one year after her symptoms had first occurred, as per the OH report). That possibility was sufficient to meet the test of disability. Therefore the Academy should have known that Ms Lamb was disabled under the Act.

Conclusions

This case is a useful reminder that employers should not delay referring their employees for medical assessment in the hope that it will defer their duty to make reasonable adjustments. Even if the employer does not have “actual knowledge” of a disability, it could still face a claim for a failure to make reasonable adjustments on the basis of “constructive knowledge”, i.e. that it could reasonably be expected to know about an employee’s disability based on the information available to it at the relevant time. Employers should also take into account the following recommendations contained in the EHRC Code of Practice:

“The employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.”