In the recent case of Lamb v The Garrard Academy UKEAT/0042/18, according to the employment appeal tribunal, the tribunal erred in deciding that an employee with PTSD was not disabled until she had been suffering from the condition for a year.
Ms Lamb (L) was employed as a teacher at The Garrard Academy (the School). L went off sick in February 2012 after filing a grievance for incidents of alleged bullying at work. This grievance was upheld by the first HR manager but the report was set aside by the chief executive. Upon re-investigation of the grievance by another HR manager it was rejected. The grievance was not concluded until 15 months after it was raised during which time L was off sick with post-traumatic stress disorder (PTSD) due to childhood abuse triggered by the workplace bullying and reactive depression.
An occupational health report (OHR) in November 2012 stated L had ‘a good prognosis for full recovery if any outstanding issues relating to her grievance were resolved’. L brought a claim in the employment tribunal (ET) against the School for unlawful disability discrimination. L submitted her claim to the ET on the basis that the School ‘did not make reasonable adjustments for her to be able to return which were:
1. The School should have read the HR report and its supporting documentation with a reasonable degree of care.
2. A member of the executive team should have acted promptly on the HR report and completed this exercise before the end of the summer term.
3. The HR report ought to have been disclosed to Ms Lamb in any event.’
- The School had actual knowledge of L’s PTSD from 18 July 2012 but did not know she was disabled until 21 November 2012. November 2012 was one year after the symptoms had first appeared and only then would the long-term element of the definition of disability be satisfied. ‘As a result, no duty to make reasonable adjustments arose before that date.’
- None of the 3 adjustments requested by L were found to be reasonable.
Employment Appeal Tribunal (EAT) decision:
- The School ought reasonably to have known of L’s disability from July 2012. If L had been referred for an OHR in July 2012 it is likely that it would have found L’s condition was long-term. L had been off sick for 4 months by then due to the lack of resolution to her grievance.
- The adjustments requested were all found to be reasonable except the disclosing of the initial HR report to L. The EAT found it to be unreasonable.
- L was put at a ‘substantial disadvantage’ by the School due to their setting aside of the initial HR report. The School ‘should have sought to remove that disadvantage by way of the first two adjustments’.
Reminders for Employers
- Employers have a duty to make reasonable adjustments for their disabled employees, and this can include dealing with grievances in an appropriate amount of time.
- Employers do not have to have actual knowledge that an employee has a disability it is whether they ‘ought reasonably to have known’.
- Employers ignore OHR’s at their peril!
Getting in touch
For more information about the points raised above, please contact Carol Shaw, Director and Head of Employment Law at Spratt Endicott Solicitors on 01295 204140, or email firstname.lastname@example.org.
*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.