Dismissal may be discriminatory even if employer does not know of disability until appeal hearing.

Summary

The Employment Appeal Tribunal (‘EAT’) has held in the case of Baldeh v Churches Housing Association that despite the employer being unaware of the employee’s depression until the appeal stage, the dismissal was still discriminatory.

Discrimination

Under section 15(1) of the Equality Act 2010, “discrimination arising from disability” occurs where both:

  • A treats B unfavourably because of something arising in consequence of B’s disability.
  • A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

However, there will be no discrimination under section 15 “if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”

Facts

Mrs Baldeh (‘the Claimant’) worked for Churches Housing Association (‘the Respondent’) as a housing support worker. The Claimant was dismissed at the end of her six-month probationary period, following various concerns about her performance with regards to her communication style and how she related to colleagues and her manager. Additionally, amongst other things, the Claimant was in breach of professional boundaries by loaning money to a service user and failed to maintain confidentiality.

The Claimant appealed against her dismissal and stated at the appeal hearing that she suffered from depression and this sometimes caused her to behave unusually, to say things “unguarded”, and to suffer short term lapses in memory.

Following the Respondent’s refusal to grant her appeal, Ms Baldeh brought a claim to the Employment Tribunal (‘ET’) for discrimination arising from disability under section 15 of the Equality Act 2010.

The ET accepted that her depression amounted to a disability but rejected her claim for disability discrimination on the basis that the Respondent had no actual or constructive knowledge of the disability at the time of the decision to dismiss. Moreover, there was no evidence that the Claimants style of communications arose in consequence of her disability.

Outcome

The EAT allowed the Claimant’s appeal. Not only did the EAT find that knowledge of the Claimant’s disability at the time of the appeal stage could still amount to discrimination but the requirement for ‘something to arise in consequence’ of the disability merely needs to have a ‘significant influence’ on the unfavourable treatment complained of. Accordingly, the EAT decided that her behaviour towards colleagues arose in consequence of her disability despite there being other causes to her actions.

Implication for Employers

The appeal stage of a dismissal is crucial. Facts which become apparent at this stage still fall within the realms of the dismissal process. Accordingly, it is essential for Employers to act fairly and adhere to their practices and procedures throughout, including after the appeal stage.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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