Employment Matters February 2019
DAC Beachcroft's Employment Matters February 2019 focuses on some of the most interesting cases and events occurring within the Employment Law sector.
Published 8 February 2019
An employer does not have an obligation to make reasonable adjustments until it has actual or constructive knowledge that the employee is disabled.
Ms Lamb was employed by the Garrard Academy. She went off sick in February 2012 because of reactive depression and alleged bullying at school. In March 2012, she raised a grievance about two incidents involving the deputy head. The head of HR, after carrying out an investigation, upheld the grievances, but the school’s chief executive regarded the report as inadequate, and set it aside in July 2012, without having read the evidence. On 18 July, Ms Lamb told the chief executive that she was suffering from post-traumatic stress disorder (PTSD), caused by childhood experiences, which could be triggered by difficult situations. In November 2012, an OH report concluded that Ms Lamb’s symptoms of reactive depression probably began in September 2011, and that there was a good prognosis for recovery if any outstanding issues on the grievance were resolved. A fresh investigation was conducted, which was not completed until January 2013 (when her grievance was rejected).
Ms Lamb claimed that the school had failed to make reasonable adjustments. The adjustments all related to the school’s handling of her grievance. The employment tribunal held that the school knew about her PTSD from 18 July 2012, but it did not know that she was a disabled person until the OH report which was dated 21 November, because only then, one year after symptoms had first appeared, was the long term element of the definition of disability satisfied. This was therefore the date on which the Academy, according to the tribunal, had constructive knowledge of her disability, and there was no duty to make reasonable adjustments until 21 November. In any event the employment tribunal decided the adjustments contended for were not reasonable.
Ms Lamb appealed.
The EAT allowed Ms Lamb’s appeal. It said that the school ought reasonably to have known that Ms Lamb was disabled by early July 2012, and that it had actual knowledge that she was disabled from 18 July. Relevant to the finding of actual knowledge was the tribunal’s finding that, from 18 July, the Academy had actual knowledge of Ms Lamb’s PTSD, a condition that was known to be long term, going back to Ms Lamb’s experiences as a child. In relation to constructive knowledge, if the school had performed an OH assessment in early July 2012, when she had been off work for four months, it was overwhelmingly likely that OH would have concluded that her impairment could well last for another three months, to September – a year after the reactive depression had begun. The date of constructive knowledge was therefore early July.
The EAT found that from July 2012 there has been a failure to make adjustments of reading the initial report into the grievance carefully and using it as a platform for reaching a conclusion by the end of July, and for a member of the executive team to have built on the report and completed it by before the summer holidays. The EAT agreed with the tribunal that making the initial report which had been set aside available to Ms Lamb was not a reasonable adjustment: this would have caused confusion and not helped her.
In considering when an employer ought reasonably to have known that an impairment is likely to last twelve months (as is necessary for the impairment to fall within the definition of “disability”) the word “likely” means simply that “this could well happen”. Where an employee is off on long term sick and/or has an impairment which might amount to a disability, employers should commission an OH report sooner rather than later, and chase this up if it is taking time, so that they can take steps to make sure that they don’t discriminate against an employee while the OH report is pending, including making any reasonable adjustments.