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08 July 2019

178: Dismissal can still be discriminatory if employer did not know of disability until appeal hearing

Under section 15 of the Equality Act 2010, discrimination arising from disability arises where an employee is treated unfavourably because of something arising in consequence of their disability, and the employer cannot show that this treatment is a proportionate means of achieving a legitimate aim.

In Baldeh v Churches Housing Association of Dudley and District Ltd, the Employment Appeal Tribunal (the EAT) held that a dismissal could amount to discrimination arising from disability where an employee first told her employer about her disability at the appeal hearing, not at the time of her dismissal.

Mrs Baldeh was dismissed after her six-month probationary period as a housing support worker due to various concerns about her conduct. These included complaints about her communication style, a complaint from a customer about the tone of a text message, failure to maintain the confidentiality of service user information, breach of professional boundaries by loaning money to a service user, and failure to consult with senior staff. At Mrs Baldeh’s appeal hearing, she informed the Housing Association that she suffered from depression and that this sometimes caused her to behave unusually, have short-term memory loss and be unguarded in how she communicated. The Housing Association rejected her appeal and she subsequently brought a claim for discrimination arising from disability.

The Employment Tribunal accepted that Mrs Baldeh’s depression amounted to a disability. However, it dismissed her claim because the Housing Association had no actual or constructive knowledge of her depression at the time of her dismissal; there was no evidence to link her depression to her blunt communication style; and there were other reasons besides her communications that would have led to dismissal. The Tribunal also held that her dismissal was justified by the legitimate aim of maintaining professional standards where staff needed to work amicably in a pressured environment, and in the context of working with vulnerable people. Mrs Baldeh appealed the decision.

Allowing her appeal, the EAT remitted the case to a different Tribunal for a re-hearing. It dismissed the Housing Association’s argument that any knowledge about Mrs Baldeh’s disability coming after the decision to dismiss her was irrelevant. The EAT held that the outcome of an appeal is integral to the overall decision to dismiss, and the Tribunal should therefore have considered whether the appeal decision was discriminatory. The Tribunal was also wrong to conclude that there was no evidence of a causal link between Mrs Baldeh’s disability and her communication style, since this was mentioned in the letter rejecting her internal appeal. As regards causation, the EAT held that the ‘something arising in consequence of her disability’, namely her communication issues, only had to have a material influence on the decision to dismiss. It did not have to be the only or main reason for dismissal. The Tribunal was also wrong in its approach to justification since it had failed to engage with Mrs Baldeh’s disability and the question of whether her dismissal was proportionate.

This decision illustrates that an appeal hearing is an integral part of the decision to dismiss and a Tribunal will therefore consider whether the employer had actual or constructive knowledge of an employee’s disability right up to the outcome of the appeal. Any new information which arises as part of an appeal must always be carefully considered and investigated where necessary. It is also important to be alert to any issues relating to disability when considering an employee’s conduct or performance, which may be more difficult where employees are suffering from mental health conditions.

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