When should an employer assume their employee has a disability?
Lamb Vs The Garrard Academy
An employee is “disabled" within the meaning of the Equality Act 2010 if:
“They have a physical or mental impairment which has an adverse effect on their ability to carry out normal day-to-day activities and the effect is substantial and long-term.”
‘Long term’ is generally accepted as a year or more and ‘normal day to day activities’ has been found to include the normal expectations of the employee’s job as well as more generic things like walking, standing, lifting etc.
Where a disability is found the employer becomes subject to a duty to make ‘reasonable adjustments’ to neutralise events where a particular job requirement puts the disabled person at a disadvantage against comparable non-disabled people. What is a ‘reasonable’ adjustment will vary depending on the size and resources of the employer.
Sometimes the question is when the employer ought to know that an employee is disabled. Is it when the employee informs them that they are disabled, when medical information confirms it or is it something else? It’s important to know the answer, because that will also be the point at which the duty to consider reasonable adjustments arises.
Ms Lamb, a teacher went off sick in Feb 2012 due to depression following alleged bullying. A month later she raised a grievance about her Deputy Head and about a pupil using racist language. An investigation completed by the then HR Manager was judged inadequate and the CEO set it aside, her grievances were re-investigated (and dismissed) by a new HR Manager some 8 months later.
In July 2012 Ms Lamb told her CEO that she suffered PTSD, and a subsequent Occupational Health referral confirmed in November 2012 that her reactive depression probably began in September 2011. So when should the school have realised that she was disabled and considered reasonable adjustments? The 3 date contenders are Feb 2012 when she went off sick, July 2012 when she told her CEO she had PTSD, or November 2012 when Occupational Health submitted their report.
The correct answer said the Employment Appeal Tribunal (EAT) was July 2012 as in its opinion the school should reasonably have known she was disabled by virtue of her 4 month ongoing absence and her disclosure to the CEO about PTSD. The knowledge while not absolute was enough for a reasonable employer to have concluded that Ms Lamb might be disabled and to start looking at reasonable adjustments, of which Ms Lamb had suggested 3:
- The School should have carefully considered the initial HR Manager’s report rather than set it aside
- The report should have been promptly acted upon; and
- Ms Lamb should have been given a copy.
The EAT concluded that the School should have read and considered the report more carefully and corrected its defects to conclude the report much sooner than it did (this duty would have been triggered in July) but it did not agree that Ms Lamb should have been given a copy of the report in its initial poor state – something it concluded would not have been helpful to Ms Lamb, and would have caused confusion.
Sometimes employers will plead ignorance as a defence against an accusation that they should have considered reasonable adjustments because if the employer didn’t know the employee was disabled, how would it know that the duty to consider adjustments had arisen?
This case shows us that inadequate management of an employee’s absence cannot amount to a defence of the employer being ignorant of the employee’s disability, as the School claimed here. In this case the employee had been absent 4 months by the time an occupational health assessment was carried out and her grievance had been stalled through no fault of her own.
The conclusions of this interesting case:
- An employer does not need a certain diagnosis to be held to be ‘constructively’ aware of an employee’s disability, rather this knowledge arises on the basis of the facts – e.g. an employee’s credible disclosure, known medical history, absence or other credible indications.
- If in any doubt as to whether or not a ‘disability’ exists an early referral to occupational health (in the absence of other conclusive medical evidence) is advised.
- Where an employee has submitted a grievance the conclusion of which is likely to have an impact on their return to work (as was the case here) the employer needs to see that grievance through to a conclusion without undue delay.