Discrimination Arising From Disability: Was Dismissal Discriminatory Despite Employer Not Knowing of Disability Until Appeal Hearing?

Year Published: 2019

Most employers understand that the purpose of an appeal hearing following a dismissal is to review the decision for dismissal and deal with any appeal points raised. However, what if the employee provides new information at the appeal stage that the original decision maker was unaware of at the time of making the dismissal decision? For example, if the employee has a disability — should you take this into account when deciding on the appeal to avoid discrimination arising from disability claims?

According to a case held at the Employment Appeal Tribunal (EAT), the answer is yes you should.

Employee claims discrimination arising from disabilityWoman dismissed from work

In the case of Baldah v Churches Housing Association of Dudley and District Ltd, the Claimant was a housing support worker who was dismissed by her employer at the end of her six-month probationary period. Concerns were raised about her performance and behaviour towards colleagues, which had already been discussed during her employment. However, the decision taken ultimately, which many employers would have also taken as she was an employee with under 2 years’ service not performing up to standard, was to dismiss.

Subsequently, the Claimant appealed against her dismissal. During the appeal hearing, she informed them that she was suffering from depression and believed that this could have influenced her behaviour towards colleagues as a depressive episode caused her to respond aggressively. She also stated that such an episode could affect her short-term memory, which caused her to lose private data belonging to clients.

Her appeal was not upheld and so she brought a Tribunal claim for, amongst other things, discrimination arising from disability (section 15 of the Equality Act 2010). This occurs where: (a) A treats B unfavourably because of something arising in consequence of B’s disability; and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

So was the dismissal discriminatory?

A section 15 claim cannot succeed if A can show that it did not know, and could not reasonably have been expected to know, that B had the disability.

The question here is: did the employer know, or ought reasonably to have known, that the Claimant was disabled? The employer argued that the claim made was with regards to a discriminatory dismissal, not a discriminatory appeal outcome. The Tribunal agreed, and found that the employer had no actual or constructive knowledge of the Claimant’s disability at the time of making the decision to dismiss.

However, the EAT viewed that the outcome of an appeal against a dismissal is “integral to the overall decision to dismiss”. This was despite the fact that the Claimant, who was not represented, had not specified that the rejection of the appeal was part of the discriminatory treatment which she was complaining about. They concluded that the Tribunal should have considered the appeal decision as part of the overall decision to dismiss the employee and then decided whether it was itself discriminatory.

The important lessons to learn from this case are to ensure that an employee’s appeal is considered carefully, and that if any new information is provided which may have impacted the original decision to dismiss, this should be taken into account and investigated before any decision on the appeal is made.

For further advice or assistance on employment-related matters, please contact Katie Hodson in our Employment Law and HR team on 0161 475 7670 or email [email protected].

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