Of the many things that keep HR professionals awake at night, the threat of disability discrimination claims is up there with being ordered to explain GDPR to an ignorant CEO or being cornered by a drunk member of staff at the Christmas party.
And there is a very good reason why HR walk on eggshells when it comes to disability discrimination claims. In 2018, for the third year running, an Employment Tribunal awarded compensation of £250,000 to an individual in a disability claim. And the problem isn’t going away any time soon. In 2017-2018, the number of disability related claims brought before the Employment Tribunal reached 5,354, an increase of nearly 1,600 claims from 2016/2017.
One of the most common claims brought under the disability discrimination banner is that the employer failed to make reasonable adjustments for the employee. The duty to make reasonable adjustments arises where the employee is put at a substantial disadvantage owing to one of the following:
- a physical feature of the employer’s premises;
- an employer’s provision, criteria or practice (PCP); or
- failure by the employer to provide an auxiliary aid.
What is key, however, is that employers only need to make reasonable adjustments in situations where they are “aware” or “ought to be aware” (sometimes referred to as constructive knowledge) that an employee is disabled and is likely to be placed at a substantial disadvantage owing to their disability.
In order to be deemed to have knowledge of an employee’s disability, the employer must be aware of the following:
- A mental or physical impairment suffered by the employee, although knowledge of the exact diagnosis of the impairment is not required; and
- The impairment has lasted, will last, or is likely to last 12 months or more; and
- The impairment interferes with the employee’s day to day activities.
The knowledge requirement has led to some interesting arguments from employers in an attempt to avoid liability. A fine example of this is found in the recent Employment Appeal Tribunal case of Lamb v The Garrard Academy, in which the timeline of knowledge was examined in detail.
Lamb v The Garrard Academy
Ms Lamb was employed by the Garrard Academy as a schoolteacher. On 29 February 2012, she was signed off sick following alleged bullying in the workplace. Her sick note cited recurring depression.
Whilst off sick, Ms Lamb raised a grievance in respect of her treatment by the Academy. An investigation was carried out by the Academy’s HR manager who upheld both points of the grievance and submitted a report to the Academy’s Chief Executive, Ms Elms. The Chief Executive, unhappy with the report, decided to set the grievance outcome aside and failed to read any of the supporting evidence. No grievance outcome was provided to Ms Lamb.
On 18 July 2012, Ms Lamb remained signed off and, in a meeting with the Chief Executive, made her aware of her diagnosis of PTSD resulting from childhood experiences. The recurring PTSD was made worse by stressful incidents such as those complained about in Ms Lamb’s grievance. Some time after the meeting, Ms Lamb was referred to occupational health. The occupational health report was finally received on 21 November 2012 and stated that Ms Lamb’s depression likely started in September 2011 and that a recovery was likely if the grievance issue was resolved.
The Academy conducted a fresh investigation into the grievance and rejected both points via an outcome letter dated January 2013. Understandably miffed, Ms Lamb brought a disability discrimination claim against the Academy, citing a failure to make reasonable adjustments. The adjustments identified by Ms Lamb related to the following:
- The Academy should have taken reasonable care in reading the first report;
- The Academy should have acted on the report; and
- Ms Lamb should have had sight of the report that was set aside.
One of the questions before the Employment Tribunal (ET) was when the Academy had knowledge of Ms Lamb’s disability, as it was only at that stage that a requirement to make reasonable adjustments was triggered. The Academy claimed that they did not have knowledge until the Occupational Health report was received in November 2012, and, therefore, they were not required to make reasonable adjustments earlier that year.
The Academy was successful in the ET. The ET found that, whilst the Academy may have had some knowledge of the potential disability when Ms Lamb made the Chief Executive aware of her PTSD in July 2012, it was not until it was confirmed by Occupational Health in November 2012 that the symptoms had lasted longer than 12 months that they had actual knowledge. As a result, Ms Lamb’s claims for reasonable adjustments in relation to the first grievance report produced in early 2012 failed.
The EAT disagreed. Ms Lamb made the Chief Executive aware of her PTSD (which dated back to her time as a child) in July 2012. Given that there was no argument that this illness affected her day to day activities, the EAT deemed the Academy to have actual knowledge of the disability from July 2012. The EAT found that, even if they were wrong in this respect, the Academy had constructive knowledge of the disability at this time. If a referral had been made to Occupational Health when Ms Lamb discussed her PTSD with the Chief Executive it was overwhelmingly likely that Occupational Health would have confirmed the disability.
As the EAT ruled that the Academy had knowledge of the disability in July 2012, the requirement for reasonable adjustments was then triggered. The EAT found that a proper review of the first grievance outcome should have occurred and failure to read the report and act upon the same was a failure to make reasonable adjustments.
What should you be doing now?
HR should ensure that all individuals who are in management positions are aware of their requirements under the Equality Act 2010, including the requirement to make reasonable adjustments.
If your company has individuals on long term sick that have not had an occupational health referral, consideration should be given to the same.
What does this mean for your business?
Companies have been warned for some time regarding the risk of delaying occupational health referrals. Historically, companies have taken the approach that if they are not made aware of the disability they cannot be liable for discrimination. This defence has been slowly eroding over the years and, as seen by this case, employers are now often caught out by the constructive knowledge test.
A link to the EAT judgment can be found here.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.