When should you involve occupational health?

The decision of the Employment Appeals Tribunal in the case of  Lamb v The Garrard Academy reminds organisations that if they don't refer an individual to occupational health when they should, they can't use their own delay to claim they didn't know about that individual's disability.

The law

Employers have a duty to make reasonable adjustments for employees who are "disabled" within the meaning of the Equality Act 2010. Someone is disabled if they have a physical or mental impairment which has an adverse effect on their ability to carry out normal day-to-day activities and the effect is substantial and long-term.

However, this duty only applies if they know the individual is disabled. This doesn't necessarily mean that the disabled employee has to explicitly tell them - knowledge can be "constructive" or "imputed" from information the employer is aware of.

Facts

Ms Lamb was a classroom teacher. She'd provided maternity cover for a year and then accepted a permanent post which started in September 2011.

In 2011, she sought medical help for severe depression and anxiety but did not disclose this to her employers. It did, however, know that her aunt had died unexpectedly during the summer and that she was grieving. During a meeting with her line manager in December 2011, Ms Lamb said she was not sleeping well and was receiving counselling to help her "get through a difficult time in her life".

A couple of months later in February 2012, Ms Lamb told her line manager she was "struggling to cope" and she was then signed off sick due to reactive depression. She spoke to the head teacher and complained that her line manager was bullying her (with some justification from what I've read).  The school treated this as a grievance and started to investigate. 

The investigation stalled and Ms Lamb remained off work. In June 2012 she met with the school and they discussed making a referral to OH. She returned to work in July and during a subsequent meeting Ms Lamb informed the school she was suffering from PTSD. At this time her grievance was still unresolved and the school effectively abandoned the first investigation and started over with a new investigator who did not compile this report until 2013.

Ms Lamb didn't return to work in September 2012 and was referred to OH. The report was dated 21 November 2012 and said that Ms Lamb had suffered from depression for over a year but that she would improve once her grievance had been resolved. It did not mention disability. A further report was commissioned in September 2013 which said that Ms Lamb did have a disability.

To cut a long story short, Ms Lamb didn't return to work and was eventually dismissed due to capability in November 2013. She alleged that the school had failed to make reasonable adjustments and the issue of when the school had knowledge of her disability became relevant.

Decision

The employment tribunal said the school was not aware of Ms Lamb's disability until it received the first OH health report in November 2012. 

The EAT said that was incorrect - the school had sufficient evidence in July 2012 to reasonably conclude that she might have a disability. By that date, Ms Lamb had been off work with depression for over four months. Her grievance was on-going and no resolution was imminent. If a referral had been made then, OH would have concluded that Ms Lamb's impairment "could well" last until September 2012, which would have pushed it beyond the 12 month mark.

Tips

This case makes it clear that organisations should consult with OH or other relevant professionals at an early stage where they have been signed off sick for a number of weeks and before taking any action that might amount to a detriment.

Employers will not be able to benefit from their own mismanagement of a case involving disability.

Need more information?

Our expert Jenny Arrowsmith can help you manage ill health issues and make sure that you don't steer the right path if you decide to dismiss.

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