When should you involve Occupational Health when an employee is on long term sick leave? Lamb v The Garrard Academy

12th February 2019 Employment

The Employment Appeal Tribunal in the recent case of Lamb v The Garrard Academy has provided useful authority on constructive knowledge of the employer in the context of disability discrimination and when companies should consider involving Occupational Health when an employee is on long-term sick leave.

The EAT commented that employers should seek medical advice in relation to those employees on long term sickness absence and cannot claim to not have knowledge if, on the facts, it is clear that they should have known the condition would meet the definition of disability.

Employers have a duty to make reasonable adjustments for employees who are “disabled„ within the meaning of the Equality Act. An employee is disabled under the Equality Act 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 is only triggered when 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 disability.

The facts

The Claimant was a teacher employed by The Garrard Academy. She was off sick from 29 February 2012 due to reactive depression and alleged bullying at work. Subsequently, in March 2012, she raised a grievance about the way she was being treated.

Further on 18 July 2012, the Claimant told the school that she was suffered from post-traumatic stress disorder (PTSD), caused by childhood experiences but which had then been triggered by the difficult situation she was facing at work. She was subsequently assessed by Occupation Health. On 21 November 2012, Occupational Health concluded that the Claimant’s symptoms of reactive depression probably began in September 2011.

The Claimant did not return to work and was eventually dismissed on capability grounds in November 2013. Following her dismissal, the Claimant brought a claim in the Employment Tribunal for unlawful disability discrimination. She alleged that the school had failed to make reasonable adjustments and the issue of when the school had knowledge of her disability became relevant. The school accepted that the Claimant was a disabled person.

The Tribunal held that the school did not know the Claimant was a disabled person until 21 November 2012 because only then, 12 months after symptoms had first appeared, was the long-term element of the definition of disability satisfied and rejected as unreasonable some of the adjustments sought by the Claimant. The Claimant appealed to the EAT.

The core issue on appeal was how the Tribunal dealt with the issue of the school’s knowledge of the Claimant’s disability.

The decision

The EAT found that that school had sufficient evidence in July 2012 to reasonably conclude that the Claimant had a disability. By that time the Claimant had been off work with depression for over 4 months and the school ought reasonably to have known that the Claimant was a disabled person and therefore they had a duty to make reasonable adjustments at this point.

The lessons

Lamb acts as a reminder to employers of the danger of failing to refer employees to Occupation Health and then claiming not to know about an employee’s disability. The case highlights that organisations should consult with Occupational Health or other relevant professionals at an early stage where an employee has been signed off sick for a number of weeks, and before taking action that may amount to a detriment. Employers will not benefit from their own mismanagement of a case involving disability.

This article is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

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Charlotte Beeley is a Solicitor located in Manchesterin our Employment department

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