When Does an Employer Have Knowledge of an Employee’s Disability?

The Legal Background

Employers have a duty to make reasonable adjustments for employees who are disabled. Under the Equality Act 2010, an employee is disabled if they have a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out day to day activities.

The duty to make reasonable adjustments is triggered when the employer has actual or constructive knowledge of an employee’s disability. Constructive knowledge arises where the employer could reasonably be expected to know of the disability.

The Facts

Ms Lamb, a teacher, began a period of long term sick leave in February 2012. In March 2012, she raised a grievance with the school in which she complained about two incidents involving the Deputy Head.

Ms Lamb’s grievance was initially investigated and upheld by the school’s Head of HR. However, the Head of HR’s grievance report was found to be inadequate by the school’s Chief Executive, Mrs Elms. Mrs Elms did not read supporting documentation appended to the report. In July 2012, Mrs Elms met with Ms Lamb to discuss the investigation and, in this meeting, Ms Lamb disclosed that she had post-traumatic stress disorder (PTSD) due to events from her childhood.

Despite initially saying she would personally deal with the grievance, Mrs Elms later commissioned a new investigation by the school’s new Head of HR. The second investigation was eventually concluded in January 2013 and rejected Ms Lamb’s grievances.

Ms Lamb brought a claim for failure to make reasonable adjustments. The alleged failures related to the way in which the investigation was handled, including that the second investigation report should have been completed before the end of the Summer term and that Mrs Elms should have read the supporting documentation to the original report.

The Decision

Ms Lamb’s initial sick notes in February 2012 cited reactive depression. In November 2012, the school obtained an Occupational Health report which confirmed that Ms Lamb suffered from PTSD and that she had been suffering a period of symptoms since September 2011.

The school accepted that Ms Lamb was disabled due to PTSD but argued that it did not have knowledge, and neither could it reasonably be expected to have knowledge, until the Occupational Health report was obtained in November 2012. Therefore the duty to make reasonable adjustments was not triggered until this time. An Employment Tribunal  accepted this.

On appeal, the Employment Appeal Tribunal (EAT) held that the school had actual knowledge of Ms Lamb’s disability mid-July 2012 when she disclosed her PTSD to Mrs Elms and that it ought reasonably to have known that she had a disability by early July 2012. The EAT therefore held that the duty to make reasonable adjustments arose in July 2012.

The EAT held that the school should have sought to remove the disadvantage to Ms Lamb by properly reading the first investigation report, including the supporting evidence, and building upon that original report so that the grievance investigation was concluded before the end of the Summer term.

Best Practice

This case demonstrates that employers need to be mindful of any information (whether oral or written), which indicates that an employee may have a disability. Such information may give employers actual knowledge of disabilities or give rise to reasonable expectations that they should have that knowledge.

Where an employer has knowledge of a potential employee’s disability, it should consider obtaining Occupational Health advice to better understand the employee’s health condition and to assist in discharging any potential duty to make reasonable adjustments.