In the recent decision of Baldeh v Churches Housing Association of Dudley and District Ltd [2019], the Employment Appeal Tribunal held that a dismissal could be discriminatory, even when an employer did not know about an employee’s disability at the time of dismissal, but was told at the appeal hearing.
Baldeh v Churches Housing Association of Dudley and District Ltd
Background
Section 15 of the Equality Act 2010 protects employees from being treated unfavourably because of something arising in consequence of their disability. An employer will have a defence to such a claim if it can show that the treatment was a proportionate means of achieving a legitimate aim, or that it did not know and could not reasonably have been expected to know about the employee’s disability.
Facts of the Case
The Claimant was a housing support worker. She was dismissed at the end of a six month probationary period following concerns about her performance that had been previously raised and discussed with her, including:
- Loaning money to a service user;
- Failing to maintain confidentiality of service user information;
- Her communication style to service users and colleagues.
The Claimant appealed against her dismissal and told her employer at her appeal hearing that she suffered from depression and that this sometimes caused her to behave unusually and to suffer from short term memory lapses. Her appeal was dismissed and dismissal upheld.
Decision
The Claimant brought a claim for discrimination arising from disability under section 15 of the Equality Act 2010.
The Employment Tribunal found that her depression amounted to a ‘disability’ for the purposes of the Equality Act 2010. However, they rejected her claim on the basis that:
- The employer did not know and could not reasonably have been expected to know that she was a disabled person;
- There was no evidence that her style of communication was a result of her disability;
- There were other reasons besides the Claimant’s communication that would have resulted in the Claimant being dismissed; and
- The dismissal was justified as a proportionate means of achieving a legitimate aim of maintaining standards required of individuals working with vulnerable people and an amicable workplace environment.
The Claimant appealed against this decision.
The Employment Appeal Tribunal upheld the Claimant’s appeal and found that the Claimant’s dismissal had constituted discrimination arising from disability. They ruled that:
- The employer had actual or constructive knowledge of the Claimant’s disability before it rejected her appeal. The appeal decision is integral to the overall decision to dismiss and should therefore have been considered; and
- It did not matter that there were other adequate grounds for dismissal without taking into account the communication issues; the test is whether the matters arising in consequence of the disability had a “material influence” on the decision to dismiss.
Comment
This case illustrates the important point that an appeal decision forms an integral part of the decision to dismiss and employees will not be penalised where they have not mentioned a disability until an appeal hearing. Employers should therefore be wary of new information that comes to light during appeal hearings, and ensure that this is properly considered when deciding whether to uphold a decision to dismiss.
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