Employers - Knowledge of Disability
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 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 suggested of a disability. In his 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 which was apparently then deemed to be a case of ‘mistaken identity’ and also the school’s failure to take action in relation to her concerns about the use by a pupil of racist language.