Knowing when an Employee has a disability
This is an area of great concern for many employers, particularly those managing employees who have mental health conditions such as depression. The EAT recently provided some helpful guidance in the case of Lamb v The Garrard Academy UKEAT/0042/18/RN.
Ms Lamb suffered from depression and PTSD. Her claim for reasonable adjustments was partly rejected by the Employment Tribunal in the first instance on the basis that no duty to make adjustments had arisen, since her employer could not have known she was disabled at the relevant time.
Under the Equality Act 2010, the duty to make reasonable adjustments arises when an employer knows, or could reasonably be expected to know, that an employee has a disability and is likely to be placed at a substantial disadvantage as a consequence.
Knowledge of disability can be actual, or it can be constructive (meaning it can be implied from the circumstances). In order to have either actual or constructive knowledge, an employer must have (or should have had) knowledge of all three of the following matters:
- The impairment (whether physical or mental);
- That it is sufficiently long-standing or likely to last 12 months at least; and
- It sufficiently interferes with the employee’s normal day to day activities.
It follows that, if an employer is aware an employee has depression (a mental impairment), it will not have knowledge of disability unless it is also aware that the effects of this are substantial and have lasted, or are likely to last, at least 12 months. Employers are expected to ‘do all they can reasonably be expected to do’ to find out whether an employee is disabled. There is no need for the employer to be aware of the specific diagnosis. Awareness of the existence of impairment or of its symptoms may be adequate.
Many cases of disability discrimination are, in my experience, defended on the grounds of lack of knowledge, particularly in relation to how long the condition has or is expected to last. This can be extremely difficult for employees (particularly those with mental health impairments) to overcome.
In the present case, the employer accepted that Ms Lamb suffered with a disability, but submitted that, although it was aware Ms Lamb suffered from depression from 29 February 2012 (when Ms Lamb was signed off sick), it did not have knowledge that this was a long term condition (and therefore a disability) until an occupational health report obtained in November 2012. The Tribunal at first instance accepted this submission, largely because (prior to November) Ms Lamb had been signed off for successive short periods, and the depression was linked to a grievance raised by Ms Lamb which, once resolved, would result in a full recovery. There was nothing to suggest, until November 2012, that Ms Lamb’s depression was ‘long term’. Accordingly, Ms Lamb’s claim in respect of reasonable adjustments arising prior to November failed, as the duty to make them had not arisen.
The EAT disagreed. Ms Lamb’s symptoms commenced in September 2011. The EAT accepted that prior to July 2012, there was insufficient evidence available to the employer to suggest the effects of Ms Lamb’s depression had been or would be long-term. The evidence available at this time suggested that the grievance which triggered the depression would be resolved imminently, allowing Ms Lamb to make a swift recovery. However, it held that by July 2012, the position had changed. The grievance was still ongoing, and there was no imminent resolution. At this point, the employer should have referred Ms Lamb to occupational health and, had they done so, it is likely that any report obtained would have stated that her symptoms could well last until September 2012, being 12 months since their onset. Accordingly, if the employer had made reasonable enquiries, it would have obtained knowledge of Ms Lamb’s disability in July 2012. Therefore, the duty to make adjustments arose in July 2012, not November 2012, allowing Ms Lamb’s claims to be remitted for consideration by a fresh Tribunal.
This case provides a useful summary of the legal position as it relates to knowledge, and is a reminder that any employer facing a disability discrimination claim should carefully consider whether (on the relevant date) it had knowledge, not just of the existence of an impairment, but of each of the three criteria to be established under the Equality Act. However, employers should also be mindful of their obligation to make reasonable enquiries. They will not be able to ‘hide behind’ a lack of knowledge if they haven’t taken reasonable and timely steps to assess an employee’s likely prognosis.
This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.
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