Can a dismissal be discriminatory if an employer does not know about an employee’s disability at the time of dismissal and only becomes aware of it at the appeal hearing? Yes, in the view of the EAT in Baldeh v Churches Housing Association of Dudley and District Ltd.
Under section 15(1) of the Equality Act 2010 (EqA 2010), “discrimination arising from disability” occurs where:
- Person A treats person B unfavourably because of something arising in consequence of B’s disability; and
- Person A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
However, person A has a defence “if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability” (section (15(2), EqA 2010).
The Claimant, a housing support worker, was dismissed at the end of her probationary period, following concerns about her performance over the course of her employment, including:
- Breach of professional boundaries by lending money to a service user.
- A complaint by a service user about the tone of a text message she had sent.
- Failure to maintain confidentiality of service user information.
- Failure to consult with senior staff regarding an instruction that had been left with her.
- Her communication style and how she related to colleagues and her manager.
She appealed against her dismissal. At her appeal hearing she mentioned for the first time that she suffered from depression and that this sometimes caused her to behave unusually, to say ‘unguarded’ things, and to suffer short-term lapses in memory.
Her appeal was rejected and the Claimant brought a claim for discrimination in the employment tribunal arising from disability under section 15 of the EqA 2010.
The tribunal accepted that her depression amounted to a disability. However, it rejected her claim for the following reasons:
- The employer had no actual or constructive knowledge of the Claimant’s disability at the time of the decision to dismiss.
- There was no evidence that the Claimant’s “blunt” style of communications with colleagues and managers was because of her disability, rather than her personality trait.
- There were other reasons, besides her communication, that would have led the employer to dismiss her.
- The dismissal was justified by the employer’s legitimate aim of maintaining standards required of individuals working with vulnerable people, and maintaining a workforce where staff can work amicably in a pressured environment.
The EAT allowed the claimant’s appeal on all four grounds.
- The employer argued for upholding the tribunal’s finding that the employer did not know and could not reasonably have known about the Claimant’s disability at the time of the original decision to dismiss, and any knowledge coming after the dismissal was irrelevant. The EAT disagreed. It was at least arguable that the employer had actual or constructive knowledge of the disability before it rejected the claimant’s appeal. In the EAT’s view the outcome of an appeal against a dismissal is “integral to the overall decision to dismiss”. The tribunal should therefore have considered the appeal decision as part of the claim relating to dismissal and decided whether the appeal decision was discriminatory.
- The EAT ruled that the tribunal’s conclusion that there was no evidence that the Claimant’s behaviour had arisen in consequence of her disability was wrong. There was evidence from the Claimant herself linking her behaviour to her disability, and the matter was also referenced in the employer’s letter rejecting her appeal.
- The EAT also held that the tribunal had failed to take account of evidence that the depression may have caused some of the behaviours for which the employee had been dismissed, and had wrongly rejected the claim on the basis that the employer had adequate grounds for dismissal without taking account of those behaviours. The correct test was not whether there were other causes for dismissal, but whether the matters arising in consequence of the disability had a “material influence” on the decision to dismiss.
- Furthermore, the tribunal had failed to consider the justification test properly. It had held that the employer was pursuing a legitimate aim but had not addressed the question of whether the dismissal was a proportionate means of achieving that aim, which required balancing the prejudice to the Claimant of losing her job for something potentially arising out of her disability against the employer’s needs.
The standout point in this case is the EAT’s statement that an appeal is an integral part of the decision to dismiss, and, when considering whether the employer had knowledge of the Claimant’s disability, it is relevant what it knew or ought to have known right up to the point at which it decides the outcome of any appeal.
Baldeh v Churches Housing Association of Dudley and District Ltd  UKEAT/0290/18
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