Case Update (2):  Discrimination – Knowledge of Disability

Summary:  Where an employer is unaware of an employee’s disability at the time of dismissal, but learns about this disability at an appeal hearing, can the dismissal be disability discrimination?

Yes, says the EAT in Baldeh v Churches Housing Association of Dudley and District Ltd, available here.

Background:  Under the Equality Act 2010, a person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

This is known as discrimination arising from disability. A can only be liable for discrimination arising from disability if A knows or could reasonably be expected to know that B was disabled.

Facts:   The employee, Mrs Baldeh, was employed as a support worker for Churches Housing Association of Dudley and District Ltd, the employer.  Mrs Baldeh was dismissed at the end of her six-month probationary period, following a disciplinary hearing, because of her performance and her rude behaviour towards her colleagues.

In her disciplinary hearing, Mrs Baldeh did not explain that she was disabled, and so her dismissal was made on the basis that she had simply not performed her job to the required standard within her first six months.

However, at her appeal meeting, Mrs Baldeh explained that she suffered from depression, which affected her behaviour and caused short term memory loss. She said that this caused her poor performance and conduct. In particular, she stated that she could respond aggressively to others while suffering from a depressive episode.

However, the employer upheld the decision to dismiss as it still considered that her actions warranted dismissal.

Mrs Baldeh brought a Tribunal claim for “discrimination arising from disability”. She alleged that she had been subjected to unfavourable treatment (her dismissal) because of something arising from a disability (namely her behaviour and poor performance).

The Tribunal held that the employer was not aware of the disability at the time the decision to dismiss was made and so there was no discrimination. Mrs Baldeh’s conduct was considered to be objectively poor and she would have been dismissed on the other grounds in any event.

Mrs Baldeh appealed to the EAT.

The EAT upheld Mrs Baldeh’s appeal.  The EAT explained that as the employer heard evidence from Mrs Baldeh at the appeal hearing that she was disabled, they had actual or at least “constructive” knowledge of her disability at the appeal meeting. They should, therefore, have explored this before upholding the dismissal.

The EAT also highlighted that while there were a number of dismissal grounds that were entirely unrelated to the disability, an employee’s disability did not have to be the “sole” or “principal” reason for the unfavourable treatment (the dismissal). The fact that the conduct arising from the disability had a “material influence” on the decision to dismiss meant that there could be potential discrimination arising from the disability in this case.

Implications:   In light of this case, employers need to be mindful of using an appeal to simply review the previous decision to dismiss. An internal appeal is an integral part of the decision to dismiss. If new facts come out at the appeal meeting then these must be explored to see whether the decision to dismiss would have been the same had the employer been aware of these facts at the time or if it should be overturned.

In particular, managers should be trained to appreciate their role when undertaking an appeal. They must consider fresh evidence produced at the appeal meeting and should not feel afraid to postpone the hearing if they need more time to investigate.

If an employee raises the issue of a disability as a potential reason for their actions, then we recommend the employer obtains a medical report on the employee’s health condition and its potential impact on the employee in the workplace, including recommendations for potential adjustments.

Employees may be too embarrassed to mention a mental health condition with their employer at an earlier stage (before they have been dismissed) due to the negative connotations of suffering from depression that still exist in many workplaces. Employers need to explore whether this fresh information would have affected the decision to dismiss and make adjustments to the procedure if necessary.