A reminder of the law
The definition of disability in terms of labor law comprises three elements. To be considered a disability for the purposes of the 2010 Act, a condition must be: a physical or mental impairment, it must significantly interfere with an individual’s daily activities, and be long-term (i.e., it must be ongoing, or probably be at least 12 months). This may sound straightforward, but it leads to a lot of disputes as those of you who keep an eye on labor law case law will know.
Some conditions are considered disability without the individual having to demonstrate that he or she meets the three elements of the definition above. These include blindness, cancer, HIV infection, multiple sclerosis, and severe disfigurement.
It is not easy to determine whether an employee is “disabled” within the meaning of the 2010 law. An employee can tell their employer that they have long-term health but never mention a disability. It is not for the employee or the employer to decide whether the illness is classified as a disability. Which means that sometimes an employee says they are disabled when they are not disabled, or that both parties think the employee is not disabled but the law says they are. Ultimately, only an ET can determine if the worker is disabled under the 2010 law. But employers can – and should – ideally seek medical advice at an early stage. Occupational health professionals are used to providing an assessment of whether a particular illness is likely to fall under the legal definition of disability.
Knowledge of disability: case study
Unfortunately for employers, there are also situations in which they are considered “constructively” informed about a disability, since they could reasonably be expected to be aware of the disability even if they were not aware of it at all. In one recent case, the fact that an employee reported to the employer that she had post-traumatic stress disorder (PTSD), along with other information the employer had about her condition, was enough for the Employment Appeal Tribunal (EAT) to do Inferring from this the employer had constructive knowledge that she was disabled.
Ms. Lamb was a teacher at Garrard Academy (“the Academy”). She was absent from work as of February 29, 2012, suffering from reactive depression and alleged bullying. In March 2012, Ms. Lamb lodged a complaint against the assistant director, complaining about how the assistant director had handled two incidents involving students. After an investigation, the head of Human Resources confirmed Ms. Lamb’s complaint, but the investigation report was postponed by the CEO in July 2012.
On July 18, 2012, Ms. Lamb announced to the manager that she suffered from PTSD. In November 2012, Ms. Lamb was rated by OH. The OH report was submitted to the Academy on November 21, 2012, and concluded that reactive depression symptoms likely began in September 2011.
After the original complaint report was overturned, the Academy conducted a new investigation that rejected its complaint in January 2013.
Ms. Lamb alleged that no appropriate adjustments had been made to the ET. One of the main issues for the tribunal to consider was the date from which the Academy had actual or constructive knowledge of Ms. Lamb’s disability and was therefore required to make appropriate adjustments to the investigation process and investigation report. The tribunal concluded that as of July 18, 2012, the Academy was indeed aware of Ms. Lamb’s PTSD. However, the tribunal found that it did not know she was disabled until November 21, 2012 (one year after her symptoms first appeared). The Academy clearly knew they passed the “long-term” disability test under the law Has. Mrs. Lamb appealed.
The EAT disagreed with the tribunal’s findings. It found that the Academy’s actual knowledge of PTSD (which is usually a long-term condition) along with other information about Ms. Lamb’s impairment as of July 2012 with the Tribunal’s findings that the Academy was neither aware of (actual knowledge) nor reasonably aware of I knew (constructive knowledge) about Ms. Lamb’s disability until November 21, 2012. The EAT determined that the constructive knowledge date was early July 2012. This was based on the fact that the Tribunal asked itself the correct question, namely, “What would OSH reasonably concluded that a referral had been made [in July 2012]? “It was very likely that it would have concluded that Ms. Lamb’s condition could last until September 2012 (one year after her symptoms first appeared, according to the OH report). This opportunity was sufficient to pass the disability test. Therefore, the academy should have known that Ms. Lamb was disabled from the beginning of July 2012 under the 2010 law.
The case is a useful reminder that employers should not delay referring their workers for medical evaluation in the hopes that doing so will postpone their duty to make appropriate adjustments. OH specialists not only provide an overview of whether an employee’s condition is likely to be classified as a disability, but can also provide advice on which adjustments may be helpful in a particular case. Even if the employer does not have “real knowledge” about a disability, he could still claim that he has not made adequate adjustments based on “constructive knowledge”. Employers should also consider the following recommendations contained in the EHRC Code of Conduct:
“The employer must do everything that can reasonably be expected of him to find out whether an employee has a disability. What is appropriate depends on the circumstances. This is an objective assessment. When making inquiries about disabilities, employers should consider issues of dignity and privacy and ensure that personal information is kept confidential. “
What 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, the provision of assistance, or the removal of a disadvantage caused by a policy or practice that you follow in the workplace. It depends on the condition of the worker and the difficulties he is causing, his duties and the work arrangements of the worker / employer. In one case, you may need to consider adjusting the person’s work pattern; in another, headphones, as a busy warehouse is sensitive to noise. For example, in a retail environment, it can be difficult for an employee to stand at a counter or raise inventory for long periods of time. Therefore, you may need to think about changing the frequency of breaks or reassigning tasks.
Consequences of a disability
A developing area of the 2010 Act is the provision that an employer is vulnerable to being found direct discrimination if it treats an employee unfavorably because of a consequence of their disability.
A recent case involving a housing association employer confirms that the “something” need only have a major impact on causing the unfavorable treatment. It doesn’t have to be the only or main cause. In this case, communication with colleagues was inadequate (which was one of the reasons for the employee’s dismissal). Employers should be aware of the impact of a disability on behavioral, behavioral and performance problems as these are often influenced in subtle ways. The case also looked at constructive knowledge about disability and whether or not comments on disability during the dismissal hearing should have been a red flag for the employer.
When the EAT found that a complaint was an integral part of the dismissal decision, it found that the dismissal could still exist if an employer did not know about an employee’s disability at the time of the dismissal but learned about it in the appeal hearing in a discriminatory manner be.
If an employer treats an employee less favorably because he feels that the employee is disabled, this can lead to less favorable treatment “because of” a disability. This is a special category as it creates an entitlement regardless of whether the employee is actually disabled. So far there has been very little case law in this area. However, a case relating to a police employer has found its way to the appeals court. The decision is awaited with some interest.
The ET and EAT have so far determined that the applicant had an actual or potential disability (namely hearing loss) that would require the Norfolk Constabulary to make adjustments to her role now or in the future. The ET concluded that the police’s decision to reject an applicant’s application for police admission because she “may not be fully functional” was direct discrimination based on a perceived disability. The police had determined that her hearing loss could worsen.
These recent cases show that nine years after the 2010 law came into force employers cannot rest on their laurels when it comes to workers who are, have, or are perceived to be disabled.
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