Disability Discrimination: Constructive Knowledge and The Duty to Make Reasonable Adjustments

In the case of Lamb v The Garrard Academy, the Employment Tribunal (“ET”) erred in determining that an employee off sick for four months with PTSD was not disabled.

The Claimant, Ms Lamb had worked for the Respondent, The Garrard Academy as a teacher. In March 2012, the Claimant raised two grievances and despite being investigated by the Head of HR, the Respondent’s Chief Executive decided in July 2012 that the investigation was inadequate and should be commenced entirely from scratch.

On 18 July 2012, the Chief Executive informed the Claimant that the investigation would be done again, and in turn the Claimant told the Chief Executive that she was suffering from post-traumatic stress disorder (PTSD) which could be triggered by difficult situations.

An Occupational Health assessment was later carried out which determined that the Claimant’s symptoms of reactive depression began in September 2011. The report concluded that the Claimant had a good prognosis for full recovery if the outstanding issues surrounding her grievances were resolved.

The Respondent began a new investigation, however the Claimant’s grievances were rejected in January 2013.

The Claimant issued claims of unlawful disability discrimination which included a claim of failure to make reasonable adjustments.  In order to succeed with the claim, the Claimant had to show that she met the definition of a ‘disabled person’ under the Equality Act 2010, and that the Respondent had actual or constructive knowledge of the disability.

The ET held that the Respondent had actual knowledge of the Claimant’s PTSD from 18 July 2012 but concluded that it did not have constructive knowledge that she was a disabled person until 21 November 2012 when the long-term element of the definition of disability would be satisfied (one year after the symptoms had first appeared). As a result, no duty to make reasonable adjustments arose before that date.

The Claimant appealed to the Employment Appeal Tribunal (“EAT”).

The EAT allowed the appeal, holding that the Respondent had constructive knowledge of the Claimant’s disability as early as July 2012 when the Claimant had been off work with depression for four months, and actual knowledge on 18 July 2012 when the Claimant told the Chief Executive about her PTSD.

The EAT held that as a result, the Respondent had a duty to make reasonable adjustments from July 2012.

This case provides useful guidance regarding constructive knowledge in the context of disability discrimination. Employers should be wary of the possible consequences of failing to refer a matter to Occupational Health and then claiming no knowledge of an employee’s disability.

If you would like more information about the issues raised in this article or any other aspect of employment law, please contact us at 02920 345511 or employment@berrysmith.com.