Lamb v The Garrard Academy

An employer’s actual or constructive knowledge of disability must be assessed by reference to the information it had, or should reasonably have obtained, at the material time. A concession that a worker was disabled throughout the relevant period does not concede the employer’s earlier knowledge of that disability.

Where an employer knew of a long-standing impairment and made no finding that it lacked knowledge of its effect on normal day-to-day activities, it could not consistently find knowledge only at a later date. In assessing constructive knowledge, the tribunal must ask what occupational health advice could well have disclosed at the time. A reasonable adjustment need only offer a prospect of alleviating substantial disadvantage. It may include promptly using available investigation material as a basis for further enquiries and resolution.

The Claimant, a teacher with post-traumatic stress disorder and reactive depression, brought a claim for failure to make reasonable adjustments against her former employer. Following an earlier successful appeal and remittal, a fresh Employment Tribunal upheld the claim only from 21 November 2012.

The Tribunal held that the Respondent lacked actual or constructive knowledge of disability before that date. It also rejected proposed adjustments concerning the handling of a grievance report prepared in July 2012. The Claimant appealed those conclusions and also contended that the Tribunal had not determined the counterfactual issue relevant to compensation.

The central issues were when the Respondent knew, or ought reasonably to have known, of disability; whether the duty to make adjustments consequently arose; and whether prompt use of the available grievance material was a reasonable adjustment.

1. Appeal allowed unanimously. The Tribunal’s conclusions on knowledge, the consequent duty to make adjustments, and the reasonableness of two proposed adjustments were set aside.

2. The Tribunal had found that the Respondent actually knew, from 18 July 2012, that the Claimant had PTSD. In the context of its finding that the condition went back to childhood experiences, that finding implicitly established long-standing impairment. The Tribunal made no finding that the Respondent lacked knowledge that the impairment sufficiently affected normal day-to-day activities. Its conclusion that the Respondent had knowledge only from 21 November 2012 was therefore irreconcilable with its own findings.

3. The concession that the Claimant was disabled throughout the material period did not determine the separate issue of the Respondent’s actual or constructive knowledge at an earlier date. Knowledge remained an issue requiring consideration of the impairment, its long-term nature, and its effect on normal activities.

4. Constructive knowledge required consideration of what a competent occupational health practitioner could well have concluded had a referral been made at the relevant time. The Tribunal was entitled to reject March 2012 as the date of constructive knowledge. By July 2012, however, the Claimant had been absent with depression for four months, her grievance remained unresolved, and no resolution was imminent. Occupational health could well have concluded that the impairment would last to September 2012. Constructive knowledge was substituted from early July 2012, with actual knowledge from 18 July 2012.

5. The duty under Equality Act 2010 therefore arose before 21 November 2012 in relation to the relevant PCPs. The Respondent should have read the Haylett report and supporting material with care, used it as a prompt for further enquiry, and built on it to complete the grievance investigation before the end of the summer term. The Tribunal’s own finding that this approach should have been used by a later investigator made its contrary conclusion for July unsustainable. Disclosure of the discredited report itself was not shown to be a reasonable adjustment.

6. The Tribunal had not determined the compensation counterfactual required by Chagger. Whether the Claimant would have remained employed had the adjustments been made was left for the remedy hearing.

• Employment Appeal Tribunal: Allowed the Claimant’s earlier appeal on the basis that the Employment Tribunal had impermissibly recast the PCP, and remitted the reasonable-adjustments claim to a fresh tribunal. No citation is stated in the judgment.
• Employment Tribunal: By a judgment promulgated on 21 September 2017, upheld the claim only from 21 November 2012.
• Employment Appeal Tribunal: Allowed this appeal and substituted findings under ETA 1996, s 35. The remaining compensation counterfactual was left to the remedy hearing.