In a recent Employment Appeals Tribunal (EAT) case, it was held that, where an employer is unaware of an employee’s disability at the time of dismissal but learns about this disability at an appeal hearing, the dismissal may still be considered discriminatory.
In Baldeh v. Churches Housing Association of Dudley and District Ltd the appellant, Mrs Baldeh was a housing support worker who was dismissed at the end of her probationary period following various concerns about her performance. She appealed against this dismissal.
During the appeal hearing, Mrs Baldeh informed her employer that she suffered from depression, claiming that it affected her behaviour and caused short-term memory loss and that this was a factor they should have considered when bringing her six-month probationary period to an unsuccessful conclusion. This point of appeal was rejected and the dismissal was upheld.
Mrs Baldeh initially raised a claim for disability discrimination. However, it was rejected by the tribunal on the following grounds:
- her employer did not and could not reasonably have been expected to know about her disability at the time of the dismissal;
- there was no evidence that her “blunt” style of communication with colleagues was linked to depression, rather than a personality trait;
- her employer had several other reasons in addition to her abrasive communication style that justified her dismissal; and
- her dismissal was justified as a proportionate means of maintaining professional standards required of individuals caring for vulnerable young people.
The EAT overturned the Employment Tribunal’s original decision and remitted the case to a fresh tribunal to determine whether the employer’s rejection of her appeal was discriminatory.
It held that although the employer may not have known about her disability at the time of the dismissal, they may have acquired actual or constructive knowledge before rejecting her appeal. As she was able to show that her employer knew or reasonably ought to have known she was disabled, she satisfied the first part of the legal test for disability discrimination.
The case is a helpful reminder for employers that an appeal is an essential part of the decision to dismiss. This means that any additional information which comes to light during an appeal hearing needs to be considered by an employer when determining the overall fairness of the dismissal.
Although this can be frustrating for managers, it is important for HR professionals to take an overall view on the case to ensure that any extra steps required are taken at that stage. Case law shows that any previous defects in disciplinary proceedings can be cured on appeal. For this reason, it is important to take a step back where necessary and to consider any weaknesses in the case.
Another key point raised in this case was that an employee did not need to show that “something arising in consequence” of their disability was the sole or main cause of their dismissal for it to be considered discriminatory. The employer in this case contended that there were several reasons for the dismissal.
However, the correct approach should have been to consider whether the “something arising in consequence” of the employee’s disability (i.e. Mrs Baldeh’s communication style) had a “material influence” on the decision to dismiss.