Constructive knowledge and disability discrimination
The Employment Appeal Tribunal (EAT) has overturned an employment tribunal's finding that a school had had no knowledge of an employee's disability until 21 November 2012, where the evidence showed that it sought reasonably to have known that she was a disabled person four months previously, in Lamb v The Garrard Academy.
Ms Lamb was a teacher employed at the Garrard Academy. She was off sick from the end of February 2012 because of reactive depression and alleged bullying at work. In March 2012 she raised a grievance about two incidents. Following an investigation the Academy's Head of HR upheld her grievance but her report, which was presented to the Academy's chief executive in July was regarded as inadequate and set aside. On 18 July 2012 Ms Lamb had a meeting with the chief executive and told her that she was suffering from post-traumatic stress disorder (PTSD), caused by childhood experiences, which could be triggered by difficult situations. She was subsequently assessed by Occupational Health which concluded, in a report dated 21 November, that her symptoms of reactive depression probably began in September 2011, and found that her prognosis for full recovery was good if any outstanding issues relating to her grievance were resolved. A fresh investigation took place, but her grievance was rejected. Ms Lamb brought a claim for disability discrimination, and a failure to make reasonable adjustments.
At first instance the tribunal found that the Academy had actual knowledge of her PTSD from 18 July 2012, but that it did not know that she was a disabled person until 21 November because it was only then, one year after the symptoms had first appeared, that the long-term element of the definition of disability was satisfied.
The EAT disagreed. The Academy had actual knowledge of Ms Lamb's disability from 18 July 2012. As to constructive knowledge, by July Ms Lamb had been off work for four months (with reactive depression apparently triggered by a workplace issue) with an ongoing grievance and, if she had been assessed then by Occupational Health it was overwhelmingly likely that it would have concluded that her impairment could well last for another three months until September 2012. The date of the Academy's constructive knowledge of Ms Lamb's disability therefore dated from July 2012, just as its actual knowledge did.
Take note: The decision in Lamb highlights the importance of getting up to date medical evidence in ongoing sickness absence cases, to find out whether the cause of the absence is a disability.
This article is taken from HR Law - February 2019.