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17 June 2019

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Can a dismissal be discriminatory when an employer only finds out about the disability at the appeal hearing?

Posted by: Sarah Scholfield

It is unlawful to treat an employee less favourably because of something arising in consequence of a disability. This form of discrimination commonly arises in scenarios where an individual’s disability has resulted in increased periods of sickness absence and they may be disciplined or dismissed because of their sickness record. Issues can also arise when someone’s behaviour and/or performance has been affected by a disability.

In the recent case of Baldeh v Churches Housing Association of Dudley and District Ltd [2019], an employee was dismissed as a result of concerns with her performance and behaviour which she claimed, at the appeals stage, may have been affected by a disability. The Employment Appeal Tribunal had to consider whether the employer’s knowledge of her disability at the appeals stage rendered the dismissal discriminatory.

Case facts

Mrs Baldeh worked for Churches Housing Association (“Churches”) as a support worker. She was subject to a six month probation period. After various concerns had been raised about her performance and behaviour, she was called to a review meeting and her employment was terminated at the end of her probationary period. At her internal appeal hearing, Mrs Baldeh told Churches that she was suffering from depression which sometimes caused her to behave unusually, to say things “unguarded” and to affect her short-term memory. Churches acknowledged the disclosure but pointed out that they were unaware of her mental health issues prior to the appeal hearing and her appeal was subsequently rejected.

Mrs Baldeh brought a claim for discrimination arising from disability under section 15 of the Equality Act 2010.

Law

Section 15 of the Equality Act 2010 prohibits discrimination arising from a person’s disability. This occurs when a disabled person is treated unfavourably because of something arising in consequence of their disability. An employer can only be held liable for an act of discrimination arising from disability if they knew (or ought reasonable to have known) about the employee’s disability.

It is possible for an employer to objectively justify an act of discrimination arising from a disability where they can demonstrate that the unfavourable treatment was a proportionate means of achieving a legitimate aim. In other words, there was no less discriminatory way of achieving their stated aim.

Tribunal decision

The tribunal accepted that her depression amounted to a disability. However, her claim was rejected based on the following reasons:-

  1. The employer did not have knowledge (actual or constructive) of the disability at the time of the decision to dismiss.
  2. There was no evidence that the Claimant’s behaviour to her colleagues/managers was anything other than a personality trait rather than disability.
  3. There were four other reasons besides her communication with others that would have led the employer to dismiss her which were:-
    • Breach of professional boundaries by loaning a service user money without authorisation.
    • A complaint from a service user about the tone of a text message which she sent to them.
    • Two incidents of breaching data protection in regards to not maintaining confidentiality of service user information.
    • Not consulting with colleagues on instructions that she had been given.
  4. The dismissal was justified by Churches legitimate aim of maintaining standards required of individuals working with vulnerable people and maintaining a workforce who could work amicably with others in a pressured environment.

The claimant appealed against the Tribunal’s decision.

EAT appeal

Mrs Baldeh’s appeal was upheld and the claim has been remitted to a new tribunal to determine if the rejection of her appeal was discriminatory.

Churches had tried to argue that Mrs Baldeh’s claim was only about a potentially discriminatory dismissal and not a discriminatory appeal outcome but the EAT rejected this. They were satisfied that Churches did have actual or constructive knowledge of her disability before it rejected her appeal and that the appeal outcome should have been taken in to account by the Tribunal when assessing whether the decision to dismiss was discriminatory.

As regards to evidence linking Mrs Baldeh’s behaviour to her disability, the EAT was satisfied that there was evidence as provided by Mrs Baldeh herself. The EAT also confirmed that, regardless of the other 4 reasons Churches claimed it had to justify dismissing Mrs Baldeh, the issues that arose in consequence of her disability (i.e her communication problems) did not need to be the sole of principal cause of the unfavourable treatment but instead needed to have a “material influence” on the decision to dismiss.

In relation to the objective justification test, the EAT felt the Tribunal had failed to balance the prejudice to Mrs Baldeh of losing her job for something potentially arising out of her disability against Churches’ needs.

How this affects employers

This case reminds us of the importance of the appeals process and the integral part it plays in the overall decision to dismiss. As such, it is essential employers take into account any new evidence presented by employees at all stages of the dismissal process including during any appeal.

Mrs Baldeh was suffering from depression but she did not disclose this to her employer until the appeal hearing. This is not uncommon as individuals can be reluctant to disclose mental health conditions, particularly to employers, given the stigma that can attach to such conditions and the impact it may have on their career aspirations. This, combined with difficulties in recognising symptoms in others, can leave employers unaware of the needs of their workforce.

Mental health problems are becoming more prominent in our society today, with statistics showing that 1 in 4 of us will experience some sort of mental health problem each year. With this in mind, employers need to encourage an open dialogue with their employees so that they feel comfortable disclosing details of any mental health conditions which may be affecting their work. Where an employee does notify their employer that they are suffering from a mental health condition, it is essential the employer acts on that information. This may involve getting an occupation health report to obtain more information on the condition and whether it amounts to a disability and also guidance on any additional help or support the individual may need. Any failure to do so can not only expose the employer to the risk of potential claims under the disability discrimination legislation but also risks marginalising these individuals which will inevitably lead to a decline in both engagement and productivity.

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Sarah is a Solicitor in our Employment Team with extensive experience advising employers on a wide range of employment matters and is also a member of the Employment Lawyers Association.

Sarah Scholfield - Associate

To discuss how Glaisyers can assist you contact Sarah Scholfield on Sarah.Scholfield@glaisyers.com or via 0161 832 4666.

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