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Disability Discrimination
| 28 May 2019

Disability Discrimination – When is an employer said to have “knowledge”?

An employer has no obligation to make reasonable adjustments for a disabled employee until it has actual or constructive knowledge that the employee is disabled.

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.

In the recent case of Lamb v The Garrard Academy, the employee went off sick in February 2012 because of reactive depression and alleged bullying.

The employee raised a grievance about incidents involving the Deputy Head, and HR carried out an investigation, upholding the grievances.

The employee then told her employer that she was suffering from Post-Traumatic Stress Disorder which could be triggered by difficult situations. The employer commissioned an Occupational Health report that concluded the employee's symptoms of reactive depression probably began prior to the employee going off sick.

The employee claimed that her employer had failed to make reasonable adjustments. The adjustments all related to the employer's handling of her grievance.

In the first instance the Tribunal found the employer had no duty to make reasonable adjustments until they had the report.

The case went to the Employment Appeal Tribunal which found in favour of the employee.  The decision was based upon the date of constructive knowledge that the employee was disabled.

The rules on constructive knowledge means that employers cannot avoid liability for failure to make reasonable adjustments if this process is delayed due to the own mismanagement.

The advice to employers is where an employee is off on long term sick and/or has an impairment which might amount to a disability, the employer should commission an Occupational Health report sooner rather than later, and take steps to make sure they do not discriminate against an employee while the report is pending, including making any reasonable adjustments.

If you would like employment advice please call (01702) 338338, or email to pplant@paulrobinson.co.uk, or ajames-pittau@paulrobinson.co.uk.
 

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