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The recent case of Lamb v The Garrard Academy serves as a warning to employers not to close their eyes to the possibility of a disability.
An employer’s duty to make reasonable adjustments for disabled employees is a core aspect of disability discrimination legislation. The aim of this duty is to create a level playing field in the workplace and it requires employers to take proactive steps to remove disadvantages impacting disabled employees.
The duty only arises when an employer has knowledge of an employee’s disability. Therefore, a key question in disability discrimination cases is whether the employer knew, or should reasonably have known, that the employee was disabled.
Mrs Lamb was a teacher at The Garrard Academy and commenced long-term sick leave in February 2012, citing reactive depression and alleged bullying at work. Soon after, she submitted a grievance about two altercations involving the deputy head. Mrs Lamb’s grievance was investigated and initially upheld. However, Mrs Elms, the school’s Chief Executive, felt that the grievance report produced by HR was inadequate and set it aside. Mrs Elms had not read the supporting materials attached to the report.
On 18 July 2012, Mrs Lamb informed Mrs Elms that she suffered from post-traumatic stress disorder (PTSD), which had been caused by childhood experiences and could activate in difficult situations. Mrs Lamb was subsequently assessed by Occupational Health, but not until November 2012. The Occupational Health report concluded that Mrs Lamb’s symptoms of reactive depression started as early as September 2011.
Mrs Lamb brought claims of disability discrimination, including a claim that the school had failed to make reasonable adjustments.
The Employment Appeal Tribunal overturned the Employment Tribunal’s original decision that the school had no knowledge of Mrs Lamb’s disability until it received the Occupational Health report in November 2012. By July 2012, Mrs Lamb had been off sick with depression for over four months and no resolution was on the horizon. Therefore, the school ought reasonably to have known that she was disabled but, in any case, were clearly notified of a disability on 18 July 2012, when Mrs Lamb told Mrs Elms about her long-term PTSD. The EAT agreed that some of the adjustments suggested by Mrs Lamb would have removed that disadvantage and found that the duty to implement them had arisen in July 2012.
The decision of the EAT is a warning to employers to be open-minded about the possibility of an employee being disabled. The tribunals will not take kindly to employers that are slow to refer to Occupational Health and who then try to claim a lack of knowledge. Instead, employers are encouraged to engage with both the employee and Occupational Health at an early stage to gather as much information as possible about an employee’s condition.
Disability discrimination is a complex area of Employment law. If you need to discuss any of the issues raised in this article, please contact our expert Employment team on 0161 941 4000 or by email firstname.lastname@example.org.