This question was discussed in the case of Baldeh v. Churches Housing Association of Dudley and District Limited UKEAT/0290/18. It was held that where an employer is unaware of an employee’s disability at the time of dismissal but learns about the disability during the appeal process, it may be discriminatory to dismiss that employee. This case serves as a reminder that information which comes to light during an appeal should be taken into account, as the appeal process will be viewed as part of the overall decision to terminate.

The Facts

The Claimant was employed as a housing support worker but was dismissed at the end of her six-month probationary period. Various concerns were raised about the Claimant’s performance including:

• a breach of professional boundaries with a service user
• breaches of data protection by not maintaining confidentiality of service user information
• communication with staff; and
• a complaint by a service user about the tone of a text message.

The Claimant appealed against her dismissal. At the appeal hearing the Claimant said that she suffered from depression which could have affected the way she communicated with her colleagues. The Claimant also mentioned that she had had a breakdown in the past and therefore knew the signals in her behaviour. The appeal was dismissed and the Claimant brought a claim for disability related discrimination under section 15 of the Equality Act 2010. Section 15 of the Equality Act protects employees from being treated unfavourably because of something arising in consequence of their disability. The employer will have a defence 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 disability.

Decision

The Employment Tribunal found that the Claimant had a disability for the purposes of the Equality Act 2010, however rejected her claim as the employer had no actual or constructive knowledge of her depression (and therefore her disability) when deciding to dismiss. The Claimant appealed to the Employment Appeal Tribunal (“EAT”).

The EAT held that although the employer did not know about the disability when deciding to dismiss her, the employer may have gained actual or constructive knowledge of the Claimant’s disability during the appeal process which the Employment Tribunal failed to consider. The EAT also held that the appeal hearing should be viewed as an integral part of the decision to dismiss and therefore all information gained during the appeal process should be taken into account when reaching a decision. The Employment Tribunal also held that the Claimant would have been dismissed for other performance reasons. The EAT held that even though some of the grounds for dismissal were not claimed to arise from the disability, it was enough for the “something arising in consequence” of her disability to have had a “significant influence” on the conduct which led to the decision to terminate.

The case was remitted to be heard by a new tribunal on whether the employer’s rejection of her appeal was discriminatory.

Comment

Employers should ensure that any information and/or evidence gained during an appeal process is considered when making the appeal decision. Such information/evidence may result in the employer gaining actual or constructive knowledge of a disability prior to the final decision to dismiss. Employers should therefore ensure that managers are able to deal with appeals adequately and are given training to identify issues that may need to be factored in to the decision making process.