When will an employer reasonably be expected to know about a disability?

Academy should have known teacher with reactive depression and PTSD was disabled and made reasonable adjustments

Case: Lamb v The Garrard Academy

Ms Lamb, a teacher at The Garrard Academy, commenced a period of long term sick leave in February 2012, citing reactive depression (following her aunt's death) and alleged bullying in the workplace. Shortly after she went off sick, she raised a grievance about two incidents concerning the deputy head.

Ms Lamb's grievance was initially upheld. However, the academy's chief executive considered that the grievance report was inadequate. She did not read the supporting evidence supplied with the report and set the report aside.

In July 2012, Ms Lamb met with the chief executive and disclosed that she had post-traumatic stress disorder (PTSD) due to experiences in childhood and that her condition could be triggered by difficult situations. Ms Lamb was then assessed by occupational health (OH) in November 2012. The report stated that Ms Lamb's symptoms of reactive depression may have begun in September 2011 and that it was likely she would fully recover if her grievance was resolved. It did not mention her PTSD.

A new grievance investigation was commenced in September 2012. The grievance outcome was provided in January 2013.

The employment tribunal decision

Ms Lamb brought disability discrimination claims to an employment tribunal. She argued that the academy should have made reasonable adjustments by: reading the initial grievance report and its supporting documentation with a reasonable degree of care; taking action following this report by the end of July 2012; and disclosing the initial report to the claimant.

The academy conceded that the claimant was disabled due to PTSD, triggered by reactive depression and alleged workplace bullying. The tribunal found that the academy had a duty to make reasonable adjustments only from the date of the OH report (November 2012). Although the academy had actual knowledge of her PTSD from 18 July 2012, the tribunal found that, at that stage, the PTSD was not long term enough to qualify as a disability. The tribunal also determined that some of the adjustments requested were not reasonable.

The EAT decision

The EAT did not agree and substituted its own findings.

It held that the academy had actual knowledge of her disability by 18 July 2012 (when Ms Lamb disclosed her PTSD to the chief executive). The EAT commented that the tribunal's finding that the academy actually knew about the claimant's PTSD in July 2012 was irreconcilable with its finding that the academy could not reasonably have known she was disabled until November 2012. The EAT considered that a finding that the academy knew that Ms Lamb's PTSD went back to childhood experiences carried with it, implicitly, a finding that the impairment was known to be long term.

The EAT held that the academy also had constructive knowledge of disability in July 2012. This was because Ms Lamb had been off work with reactive depression for four months; her grievance remained unresolved and was unlikely to be resolved before September 2012. The EAT stated that the tribunal should have asked itself: "What would OH have reasonably concluded if a referral was made then?" The EAT considered that it was very likely that OH would have concluded that her impairment could last for another three months until September 2012 (that is 12 months from the date of onset of her symptoms).

The EAT also decided that the academy should have, as reasonable adjustments, read the initial grievance report with care, and built on this report to complete the grievance investigation before the end of the summer term. It did not uphold the claimant's argument that this initial report should have been disclosed to her as a reasonable adjustment. This was because the initial report had been set aside and a new investigation superseded this report. Disclosing the original report would have been confusing and unhelpful to the claimant.

Comment

Employers should be aware that claims for a failure to make reasonable adjustments and for discrimination arising from disability can be successful even when the employer does not actually know about the disability. Only direct discrimination claims can be defended on the basis of a lack of actual knowledge of the disability. If the employer should reasonably have known about the disability, but for example unreasonably failed to seek an OH report, constructive knowledge of the disability may be found. In this case, the employer was found to have enough information to be obliged to make further enquiries.  It is therefore important that employers make reasonable efforts to find out about an employee's condition by referring the employee to OH and/or seeking information from a medical professional.