- Directory of Members
In the recent case of Baldeh v Churches Housing Association of Dudley and District Ltd, the Employment Appeal Tribunal (“EAT”) held that where an employer was not aware of an employee’s disability at the time of the dismissal, but subsequently became aware of it at the appeal hearing, the dismissal could still be discriminatory.
This will be a surprising outcome for some to get their heads around, especially given that the person who dismissed the employee did not know of the disability! So, how can that person have discriminated against the employee? More importantly, what is the impact of this case for employers when dealing with employees? Read on to find out more and get to grips with these points!
Discrimination arising from disability is defined in section 15 of the Equality Act 2010, which provides that:
“A person (A) discriminates against a disabled person (B) if:
Importantly, if “A” (for example, an employer) can show that it did not know, and could not reasonably have been expected to know, that “B” (the employee) had the disability, there will be no discrimination for these purposes.
In the case of Baldeh, a housing support worker (Mrs Baldeh), was dismissed by her Housing Association employer (‘the employer’), after a six-month probationary period. According to the employer, this followed numerous concerns which had been noted and discussed with Mrs Baldeh in relation to her performance. These included, but were not limited to, her allegedly breaching confidentiality in relation to service user information, breach of professional boundaries by lending money to a service user and poor communication skills.
Mrs Baldeh lodged an internal appeal against her dismissal. At the appeal hearing, she claimed to suffer from depression and said that this can lead to her displaying unusual behaviour, saying things “unguarded” and suffering short-term lapses in memory. After her appeal failed, Mrs Baldeh brought a claim for discrimination arising from disability under section 15 of the Equality Act 2010. Basically, she argued that the issues the employer relied on arose from a disability and she had been treated unfavourably as a result.
Whilst the tribunal did not dispute that Mrs Baldeh’s depression was a disability for the purposes of the Equality Act, it rejected her claim on the basis that the employer had no knowledge of the disability at the time of the decision to dismiss. Further, the tribunal found that there was no evidence to demonstrate that Mrs Baldeh’s communication style was caused by her depression. More specifically, whilst the employer had cited issues with her communications, the tribunal did not consider that her communication issues were something arising out of her disability.
The tribunal also found that there were other reasons for her dismissal (referred to above) that led to her dismissal which were not attributed to her disability. The tribunal held that the dismissal was justified by the employer’s legitimate aim of maintaining high standards for staff working with vulnerable people. Mrs Baldeh appealed against the decision.
In the EAT, Judge Shanks allowed Mrs Baldeh’s appeal and remitted the matter to a fresh tribunal due to the first tribunal’s errors and owing to the amount of time that had passed.
The employer argued that Mrs Baldeh’s claim related to a discriminatory dismissal, not a discriminatory appeal outcome (i.e. the appeal hearing outcome should not affect the fairness of the original decision) and pointed out that the employer was not aware of the disability at the date of dismissal. The EAT disagreed with this approach- it instead found that the outcome of an appeal hearing is “integral to the overall decision to dismiss”. As the employer had knowledge of Mrs Baldeh’s disability when it decided the appeal, the tribunal should have considered the appeal decision as well when deciding whether or not discrimination had occurred.
The EAT also:
Interestingly, there was no medical evidence in the present case to support Mrs Baldeh’s assertions that her communication style was as a result of her depression. Instead, the EAT referred to Mrs Baldeh’s own evidence on the point which is likely to be concerning for employers. It will be interesting to see whether we see more cases with employees seeking to rely on a disability after their dismissal as a result of this case.
This case confirms that matters arising at an appeal hearing can be taken into account by the tribunal when considering the fairness of the decision to dismiss. In the context of discrimination arising from a disability, the main learning point for employers here is that they should be mindful of this point when carrying out their internal procedures and consider whether additional steps should be taken before dismissal. For example, once the employer learned of the employee’s disability on appeal it could have sought medical evidence at that point to see if the employee’s assertions were correct and then had a re-hearing of the disciplinary hearing with that additional knowledge.
Moving forwards, another tactical tip is that the employer could have sought disclosure of medical evidence in the tribunal proceedings to see whether the claimant’s assertions were backed up or not. Whilst the onus is on the employee to establish disability, employers may now wish to consider seeking disclosure of medical evidence given that the EAT appeared to have just accepted the claimant’s witness evidence here and no medical evidence was present to confirm or counter this.
This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership