The Equality Act 2010 defines ‘disability’ as a physical or mental impairment which has a substantial and long-term adverse effect on an employee’s ability to do day-to-day activities. Employers have a duty to make reasonable adjustments for employees who are disabled if they have actual or ‘constructive’ knowledge of the disability. An employer will have constructive knowledge if they could reasonably be expected to know about it. In Lamb v The Garrard Academy, the Employment Appeal Tribunal looked at when constructive knowledge will apply in practice.
The employee went off sick with reactive depression and alleged bullying at work in February 2012. She raised a grievance in March 2012. The grievance was not dealt with properly by the employer. In July, the employee disclosed that she was suffering from post-traumatic stress disorder (PTSD) dating back to childhood and triggered by stressful events. She was referred to occupational health in November 2012, when a report was produced. It said the employee’s reactive depression dated back to September 2011.
The employee brought a claim for failure to make reasonable adjustments. The question was when the employer knew (or should have known) about the disability. The employment tribunal found that the employer knew about the PTSD in July 2012. However, they had only failed to make reasonable adjustments from November 2012 when they found out her condition was long-term (and therefore met the legal disability test). The Employment Appeal Tribunal disagreed. They said that the employer had constructive knowledge of the employee’s disability from July 2012. By then, she had been off work for 4 months. If the employer had referred her to occupational health then, OH would very likely have said that her impairment could last until September 2012 (and be long-term). This meant that the duty to make reasonable adjustments was triggered in July, not November.
This case, which finally concluded in December 2018, is a reminder to employers that claims for a failure to make reasonable adjustments can be successful even when the employer does not actually know about the disability. In this case, the employer should have asked more questions and made an OH referral sooner. Prolonged absence and the reporting of a serious medical condition should always trigger an occupational health referral or at least further enquiries. The content of any report should also be acted on quickly.
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