An employer who does not know and could not reasonably be expected to know that an employee has a disability is under no duty to make reasonable adjustments. In the recent case of Lamb v The Garrard Academy, the Employment Appeal Tribunal considered when the employer in question was actually and constructively aware of the employee’s disability. The EAT found that the employer should reasonably have been aware of the disability four months before it actually made a reference to occupational health and was under a duty to make adjustments at that point.
Facts
Ms Lamb was employed by the Garrard Academy as a teacher. She was signed off sick with depression and alleged bullying at work in February 2012. She subsequently raised a grievance in March 2012 making two complaints. The first was that the deputy head had told her that she had made a boy in her class suicidal, but had refused to name him. Four months later, the deputy head told her it had been a case of ‘mistaken identity’ and the boy was not actually in her class. The second was that she had passed written complaints from some of her pupils about the use of racist language by another pupil to the deputy head who had put the complaints in the bin without looking at them.
The head of HR investigated and reported back in July 2012. She accepted the grievance. This report was set aside by the Chief Executive of the Academy as inadequate. None of the supporting material prepared by the head of HR were looked at by the Chief Executive.
On 18 July 2012 the Chief Executive had a meeting with Ms Lamb. During this meeting Ms Lamb informed the Chief Executive that she suffered from PTSD due to a childhood trauma. The Chief Executive told her that she would deal with the outstanding grievance. A month later, in August 2012, the Chief Executive wrote to Ms Lamb saying that she had changed her mind and would not be dealing with the grievance.
A fresh investigation into the grievance was started in the new September term by a new head of HR. It was eventually rejected in January 2013. In the meantime, an occupational health report on Ms Lamb in November 2012 found that her reactive depression probably began in September 2012 and that there was a good chance of a full recovery if her grievance was resolved.
Ms Lamb brought claims of disability discrimination including a claim for a failure to make reasonable adjustments. At the tribunal hearing it was found that the Academy only had to make reasonable adjustments from November 2012 when it was clear that her illness was long term enough to be a disability. Ms Lamb appealed to the Employment Appeal Tribunal (EAT) on the basis that the Academy knew of her disability before the date of the occupational health report.
Decision
The EAT held that the Academy were actually aware that Ms Lamb was disabled on 18 July 2012, when she told the Chief Executive she had PTSD, a condition known to be long term as she had stated that it commenced from childhood experiences.
In relation to constructive knowledge, the Academy should have known of Ms Lamb’s disability in July 2012. She had been off work for over four months at this point and her grievance was unresolved. If an occupational health report had been sought, it was overwhelmingly likely that it would have been concluded that her impairment would last for another three months, meaning that it was likely to be a long term impairment.
The Academy ought reasonably to have known she was disabled by July 2012 and had actual knowledge of it from 18 July 2012. The duty to make reasonable adjustments therefore started in July, not November.
The adjustments sought by Ms Lamb included:
- The Academy should have read the initial grievance report from HR and its supporting documentation with a reasonable degree of care;
- A member of the executive team should have acted promptly on the report and completed the exercise by the end of the summer term.
The EAT found that both of these were reasonable adjustments.
Comment
Although the finding of actual knowledge in July meant that the finding in relation to constructive knowledge made no difference in this case, there will be many occasions when constructive knowledge will be the only test. The EAT in this case looked at what an occupational health report would have concluded had a reference been made four months into Ms Lamb’s absence. This is a useful reminder that an employer cannot necessarily claim to be ignorant of a disability if they have delayed or failed to refer an employee to occupational health.
Another interesting aspect of this case is the type of adjustments that were found to be reasonable. The adjustments were simply practical points to enable the Academy to conduct the grievance in a reasonable way. This case suggests that reasonable adjustments can be very simple practical points about the operational of a grievance procedure and need not necessarily be the usual more serious adjustments to critical parts of a job such as working hours and duties.
Frances Rollin