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Disability Discrimination: A Cautionary Word
A recent case (Lamb v The Garrard Academy) reminds employers of the need to be more pro-active in assessing whether an ill employee may be disabled for the purposes of discrimination legislation. This is important because the Equality Act imposes on employers the duty to make reasonable adjustments in relation to the treatment of disabled employees where they know or should have known that an employee is disabled. And the definition of disability is so wide that most longer term physical and mental conditions are likely to be covered.
In this case, Ms Lamb had been employed as a teacher at The Garrard Academy and had been off work with depression for 4 months following an alleged bullying situation. If medical reports had been referred to occupational health, it was likely that they would have concluded that Ms Lamb suffered from a long-term post traumatic stress disorder likely to affect her for at least 12 months (the period generally required for a condition to be classified as having long-term effect for the purposes of the disability definition); Ms Lamb would therefore have been classified as disabled.
What often happens in practice is that there is little focus on the issue of disability, particularly at early stages of illness absence. The word “disabled” did not appear in any of the medical documentation and the employer simply did not consider the issue. However, the Employment Appeal Tribunal’s decision was that if the employer had considered the issue (as it should have done), the only reasonable conclusion would have been that Ms Lamb suffered from a disability and this would have triggered the need to make reasonable adjustments on the employer’s part. So, when an employee is away from work for a significant period alarm bells should ring that they may be disabled, particularly where they have a history of such illness. And medical and legal advice should then be taken.
Please get into contact with Richard Gvero head of Employment.
Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.