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15 March 2019

165: Employment Appeal Tribunal considers whether employer had constructive knowledge of disability

Under the Equality Act 2010, an employee is disabled if they have a physical or mental impairment which has an adverse effect on their ability to carry out normal day-to-day activities, and the effect is substantial and long-term.

The duty to make reasonable adjustments only arises where the employer has actual or constructive knowledge of the employee’s disability. Constructive knowledge arises where the employer could reasonably be expected to know of the physical or mental impairment; that it is long-standing or likely to last at least 12 months; and that it had a sufficiently adverse effect on the employee’s normal day-to-day activities to amount to a disability. However, there is no need for the employer to be aware of the specific diagnosis of the condition.

In Lamb v The Garrard Academy, the Employment Appeal Tribunal (EAT) has overturned the Employment Tribunal’s finding that a school had no duty to make reasonable adjustments in its handling of a teacher’s grievance because it had no actual or constructive knowledge that her illness satisfied the definition of a disability.

Ms Lamb, a teacher at The Garrard Academy, went off sick in February 2012 due to reactive depression and alleged bullying. In March 2012, she raised a grievance complaining of two incidents relating to the Deputy Head. The grievance was investigated and upheld by the Head of HR. However, the grievance report was regarded as inadequate by the Academy’s Chief Executive, who set it aside without looking at any of the supporting material. At a meeting on 18 July 2012, Ms Lamb told the Chief Executive that she was suffering from post-traumatic stress disorder (PTSD) arising from abuse suffered as a child, which could be triggered by difficult situations. Ms Lamb was subsequently assessed by Occupational Health, which concluded in November 2012 that her symptoms of reactive depression probably began in September 2011 and that she was likely to recover fully once any outstanding issues relating to her grievance were resolved. A new HR manager undertook a fresh investigation which resulted in Ms Lamb’s grievance being rejected in January 2013.

Ms Lamb brought various claims in the Employment Tribunal, including a claim of failure to make reasonable adjustments in the handling of her grievance. The Academy accepted that her PTSD amounted to a disability. However, the Tribunal concluded that although the Academy had actual knowledge of the PTSD from 18 July 2012, when Ms Lamb met with the Chief Executive, it did not know that this amounted to a long-term disability until it received the Occupational Health report in November 2012. Since this was therefore the date on which the Academy had constructive knowledge of her disability, the duty to make reasonable adjustments only arose at that point. The Tribunal ruled that, in any event, some of the adjustments identified were not reasonable.

The EAT allowed Ms Lamb’s appeal. It ruled that the Academy had actual knowledge that her PTSD amounted to a long-term disability on 18 July 2012, when she told the Chief Executive that it went back to her childhood experiences. At that point, Ms Lamb had been off work for four months, and her grievance was still unresolved. If a referral had been made in July, which would have been reasonable, it was likely that Occupational Health would have concluded that her impairment could well last for another 12 months. Accordingly, the date of constructive knowledge was early July 2012.

Since the Academy ought to have known that Ms Lamb was disabled by July 2012, the duty to make reasonable adjustments also applied from that date. The EAT held that some of the adjustments suggested by Ms Lamb would have been reasonable, including reading the initial report from the head of HR carefully and using it as a platform for reaching a conclusion by the end of the summer term in July 2012.

This is a useful decision on constructive knowledge in the context of disability discrimination and highlights the importance of referring employees who may have a disability to Occupational Health, or obtaining appropriate medical advice, as soon as possible. The rules on constructive knowledge mean that employers cannot avoid liability for failure to make reasonable adjustments if this process is delayed due to their own mismanagement.

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