A reminder of the law

There are three elements to the definition of disability for the purposes of employment law. To be considered a disability for the purposes of the 2010 Act a condition must be: a physical or mental impairment, it must have a substantial adverse effect on the individual's day to day activities and it must be long-term (meaning it must last, or be likely to last, for at least 12 months). That may sound straightforward, but it gives rise to many disputes as those of you who keep an eye on employment case law will be aware.

Some conditions are deemed to be a disability, without the individual having to show that they meet the three elements of the definition set out above. These include blindness, cancer, HIV infection, multiple sclerosis and severe disfigurement.

It is not straightforward to identify whether an employee is "disabled" in terms of the 2010 Act. An employee might tell their employer that they have a long-term health condition but never mention disability. It is not up to the employee or the employer to decide whether the condition qualifies as a disability. Which means sometimes an employee may say they are disabled when they are not, or both parties may think the employee is not disabled, but the law says they are. Ultimately only an ET can make the determination of whether the employee is disabled under the 2010 Act. But employers can – and should – seek medical advice, ideally at an early stage. Occupational Health (OH) specialists are accustomed to giving a view on whether a particular condition is likely to fall within the legal definition of disability.

Knowledge of disability: case study

Unfortunately for employers, there are also situations where they are deemed to have "constructive" knowledge of a disability, because they could reasonably have been expected to know of the disability even if in fact they are completely unaware of it. In one recent case, the fact that an employee told the employer that they suffered from post-traumatic stress disorder (PTSD), along with other information the employer had about her condition, was enough for the Employment Appeal Tribunal (EAT) to conclude that the employer had constructive knowledge that she was disabled.

Ms Lamb was a teacher at the Garrard Academy ("the Academy"). She was absent from work from 29 February 2012 suffering from reactive depression and alleged bullying. In March 2012 Ms Lamb raised a grievance against the deputy head complaining about the way the deputy head had handled two incidents involving pupils. After an investigation the head of HR upheld Ms Lamb’s grievance but the investigation report was set aside by the chief executive in July 2012.

On 18 July 2012 Ms Lamb informed the chief executive that she was suffering from PTSD. In November 2012 Ms Lamb was assessed by OH. The OH report was submitted to the Academy on 21 November 2012 and concluded that the symptoms of reactive depression probably began in September 2011.

Following the setting aside of the original grievance report, the Academy conducted a new investigation, which rejected her grievance in January 2013.

Ms Lamb brought a claim for a failure to make reasonable adjustments to the ET. One of the primary issues that the tribunal was required to consider was the date from which the Academy had actual or constructive knowledge of Ms Lamb’s disability and was therefore obliged to make reasonable adjustments with regard to the investigation process and the investigation report. The tribunal concluded that the Academy had actual knowledge of Ms Lamb’s PTSD from 18 July 2012. However, the tribunal found that it did not know that she was disabled until 21 November 2012 (one year after her symptoms had first appeared), which was when the Academy clearly knew that she satisfied the “long-term” test for disability under the Act. Ms Lamb appealed.

The EAT disagreed with the tribunal’s findings. It held that the Academy's actual knowledge of PTSD (which is usually a long-term condition) together with other information of Ms Lamb’s impairment from July 2012 was “irreconcilable” with the tribunal’s findings that the Academy neither knew (actual knowledge) nor could reasonably have known (constructive knowledge) about Ms Lamb’s disability until 21 November 2012. The EAT found that the date of constructive knowledge was by early July 2012. This was on the basis that, had the tribunal asked itself the correct question, namely “what would Occupational Health have reasonably concluded if a referral was made [in July 2012]?”, it was highly likely that it would have concluded that Ms Lamb’s condition could last until September 2012 (one year after her symptoms had first occurred, as per the OH report). That possibility was sufficient to meet the test of disability. Therefore, the Academy should have known that Ms Lamb was disabled under the 2010 Act from early July 2012.

The case is a useful reminder that employers should not delay referring their employees for medical assessment in the hope that it will defer their duty to make reasonable adjustments. As well as providing a view on whether an employee's condition is likely to qualify as a disability, OH specialists can also provide advice on what adjustments might help in a particular case. Even if the employer does not have “actual knowledge” of a disability, it could still face a claim for a failure to make reasonable adjustments on the basis of “constructive knowledge". Employers should also take into account the following recommendations contained in the EHRC Code of Practice:

“The employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.”

What kind of adjustments should an employer consider?

The reasons you might need to make adjustments are almost limitless. They can include changes to a physical feature of your premises, providing an auxiliary aid or removing a disadvantage caused by a policy or practice you follow in the workplace. It will depend on the employee's condition and what difficulties that causes for them, their duties and the working arrangements of the employee/the employer. In one case, you might need to consider adjusting the individual's working pattern, in another providing headphones because of a sensitivity to noise in a busy warehouse. In a retail environment, for example, an employee might have difficulty standing for long periods at a counter or lifting stock, so you might need to think about changing the frequency of breaks or reallocating tasks.

Consequences of disability

A developing area of the 2010 Act is the provision that an employer is vulnerable to a finding of direct discrimination if it treats an employee unfavourably because of something arising in consequence of their disability.

A recent case concerning a housing association employer confirms that the "something" only has to have significant influence in causing the unfavourable treatment. It does not have to be the sole or principal cause. In this case the something was inadequate communication with colleagues (which had been one of the reasons for the employee's dismissal). Employers should be aware of the impact of a disability on conduct, behavioural and performance issues as these will often be affected in subtle ways. The case also dealt with constructive knowledge of disability and whether or not comments made about disability during the dismissal appeal hearing should have been a red flag to the employer.

The EAT, in holding that an appeal is an integral part of the decision to dismiss, found that where an employer did not know about an employee's disability at the time of dismissal, but was told about it at the appeal hearing, the dismissal could still be discriminatory.

Perceived disability

If an employer treats an employee less favourably because they perceive that the employee is disabled this may amount to less favourable treatment "because of" a disability. This is a special category because this gives rise to a claim, regardless of whether the employee is actually disabled. There has been very little case law in this area to date. However a case concerning a police force employer has made its way to the Court of Appeal. The decision is awaited with some interest.

The ET and EAT have to date held that the claimant had an actual or a potential disability (namely hearing loss) which would require the Norfolk Constabulary to make adjustments to her role, either now or in the future. The ET concluded that the decision of the Constabulary to reject an application from the claimant to become a constable because she "might not be fully operational" amounted to direct discrimination on the basis of a perceived disability. The Constabulary had determined that her hearing loss might get worse.

These recent cases show that, nine years on from the enactment of the 2010 Act, employers cannot rest on their laurels when it comes to employees who have, might have, or are perceived to have a disability.