Is “innocence” a good enough reason not to accommodate your disabled employees? Will it work as a defence in proceedings for discrimination? The following guest post has been kindly shared with us by employment lawyer Nigel Tillott, a Director at Davies & Partners Solicitors. The post reminds us that it is not sufficient simply to pay lip service to the Equality Act 2010.
A standard refrain from accused employers is that “I didn’t know that the employee had a disability so how could I have made adjustments/otherwise discriminated?” In the recent case of Lamb v The Garard Academy the Employment Appeals Tribunal (EAT) has confirmed that a sceptical approach will be taken towards employers saying that.
Under the Equality Act 2010 Section 21(2), the employer has to have actual or constructive knowledge of an employee’s disability to have a liability. “Actual” is not an issue, but what about “constructive knowledge”? This applies when the employer could reasonably be expected to know of the disability. It is clear that an employer cannot just close its eyes to a practice which might be suggestive of a disability.
In this particular case a school teacher was off sick as a result of reactive depression and alleged bullying. She had apparently been told by the deputy head that she was responsible for a pupil feeling suicidal – but that was apparently then deemed to be a case of “mistaken identity” and also of the school’s failure to take action in relation to her concerns about the use by a pupil of racist language.
An investigation was undertaken by the school’s head of HR, which took the view that there was merit in the teacher’s grievance, but it seems that the school shelved the report and didn’t really treat it with any seriousness. In July the school teacher informed the school’s chief executive that she was suffering from PTSD caused by her own childhood experiences. The school still didn’t take any action and appears to have made the assumption that the employee’s health would recover, and that the illness would not be of the necessary 12 months’ duration such that she had protection under the Disability Act.
The EAT’s view was that by July 2012 the school had enough knowledge of the situation such that it should be regarded as having known of the disability. There is also suggestion, from the judgment, that where circumstances arise where an employer has cause to think that an employee may have a disability it should promptly refer the matter to occupational health for a report; if it fails to do so it is not likely to be looked upon sympathetically by an Employment Tribunal.
We’re grateful to Nigel for allowing us to share this article, which first appeared on the Davies & Partners website here.