346: Can dismissal be discriminatory if an employee hasn’t told their employer about their disability?

Knowledge is everything in disability dismissal cases. Understanding this is crucial for employers.

A recent EAT case has clarified that a discrimination claim in relation to a dismissal is unlikely to succeed when an employer only learns of the employee’s disability after the dismissal.

In a discrimination claim, the decision to dismiss an employee and any appeal related to that decision are separate. Therefore, where an employer only became aware of the employee’s disability between the dismissal and the appeal, the discrimination claim would have to relate to the appeal rather than the dismissal in order to be successful. This can be seen in the recent case of Stott v Ralli Ltd.

The EAT upheld an Employment Tribunal’s decision that there was no discrimination arising from disability where the employer did not know about the employee’s disability prior to dismissing her for poor performance.

Ms Stott, a paralegal in a firm of solicitors, was dismissed for poor performance after only three months of employment. Following her dismissal, she submitted a grievance which referred to her mental health issues and asserted that she was a model employee and had been dismissed because of her disability. Ms Stott’s grievance and her subsequent appeal were rejected, partly on the basis that she had never told the firm about her disabilities. She subsequently brought a claim alleging that her dismissal amounted to discrimination arising from disability.

The Tribunal dismissed Ms Stott’s claim, ruling that she had been dismissed for poor performance. She had not disclosed her impairment to the Employer (Ralli Ltd) at any time prior to her dismissal. Accordingly, the firm could not have known or reasonably be expected to have known that she had a disability. In any event, any unfavourable treatment had been justified by the firm’s need to maintain high standards and accurate written communications, and her dismissal was a proportionate means of achieving that aim.

Ms Stott appealed on the basis that the Employment Tribunal should have regarded her grievance and grievance appeal as an integral part of the dismissal process. Ms Stott hoped that this would lead the EAT to conclude that, by the end of the dismissal process, Ralli did have knowledge of her disability. The EAT rejected this argument. In a discrimination claim, the dismissal and appeal are regarded as distinct and therefore any claims about the dismissal and appeal decisions must be raised separately. This differs from unfair dismissal claims, where an appeal is viewed as part of the whole disciplinary process and relevant to overall fairness. Ms Stott had confirmed at various preliminary hearings that she had only brought a claim of disability discrimination in relation to her dismissal, not in relation to her grievance appeal. There was therefore no error of law in the Tribunal’s conclusion that her employer had no actual or constructive knowledge of her disability.

This decision clarifies that while in an unfair dismissal case an appeal is regarded as an integral part of the disciplinary process, which is relevant to the question of overall fairness, this is not the case in discrimination claims. The question of when an alleged discriminatory act occurs is a crucial one for employers to consider as that is the point at which knowledge of disability is relevant (and in this case, the alleged discrimination was clearly the decision to dismiss).